New York Times (New York)
By James C. McKinley Jr.
November 19, 2013
New York judges must warn immigrant defendants that they face deportation if they plead guilty to a felony, the state’s highest court ruled on Tuesday.
In a 5-to-2 decision, the Court of Appeals overturned its 1995 ruling that deportation is a “collateral consequence” of a guilty plea, and so judges need not warn foreign defendants it might happen.
Writing for the majority, Judge Sheila Abdus-Salaam said that times had changed since the mid-1990s, when about 37,000 noncitizens were deported after criminal convictions.
That number stood at 188,000 in 2011, Judge Abdus-Salaam wrote, and, with stricter enforcement of immigration laws, deportation has become “an automatic consequence of a guilty plea for most noncitizen defendants.” She said defendants who took plea bargains often found themselves stripped of their jobs, cut off from their family in the United States and returned to a country they hardly remembered.
The majority concluded “that deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to defendant as a matter of fundamental fairness,” Judge Abdus-Salaam wrote.
More than 20 states already require judges to issue such warnings, and in the 1990s the New York State Legislature put a similar requirement in the criminal procedure law. But failing to give the warning carried no consequence, and judges sometimes skip it, defense lawyers said.
“Courts should be doing this already but in practice they are not,” said Rosemary Herbert, a lawyer for Richard Diaz, one of the three defendants in the case. “This decision is putting some teeth in that requirement.”
Chief Judge Jonathan Lippman and Judges Victoria Graffeo, Susan P. Read and Jenny Rivera joined Judge Abdus-Salaam in the majority. Judges Robert S. Smith and Eugene F. Pigott Jr. dissented.
In 2010, the United States Supreme Court ruled in Padilla v. Kentucky that defense lawyers have a duty to tell clients they face deportation before they offer a guilty plea.
The Court of Appeals decision this week came in response to three criminal cases in which judges failed to tell defendants about their likely deportation.
Mr. Diaz, a legal United States resident from the Dominican Republic, was arrested in October 2006 with another man in the back of a taxicab in Upper Manhattan after the police found a two-pound brick of cocaine on the car’s floor during a traffic stop.
He pleaded guilty to a reduced charge in return for a two-and-a-half-year sentence, but as soon as he was released, Immigration and Customs Enforcement moved to deport him.
Because a trial judge in Manhattan never warned Mr. Diaz of the deportation, the Court of Appeals ruled that he had a right to move to withdraw his guilty plea. The majority said the motion would not be granted automatically, though, as is done with other violations of due process. Instead Mr. Diaz, and other defendants like him, must show that if he had been warned, he would have insisted on going to trial.
On this point, Judges Lippman and Rivera dissented, arguing that similar pleas in the absence of a warning should be reversed automatically.
Lawyers for the three defendants in the case — Mr. Diaz, Juan Jose Peque and Michael Thomas — said the decision was a sea change. “The decision certainly makes clear that judges from now going forward must warn, and it opens up an avenue for defendants who are already convicted and haven’t been warned to appeal,” said Lynn W. L. Fahey, who represented Mr. Thomas.
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