• As noted in People v. McLartey below, New York “…courts are divided on the question of whether Padillia should be applied retroactively in post-conviction proceedings...” Compare, People v. DeJesus, 30 Misc 3d 1203 (A) (Sup. Ct. NY 2010); People v. Nunez, 30 Misc 3d 55 (Sup. Ct. App. Term 2010); People v. Garcia, 29 Misc 3d 756 (Sup. Ct. Kings 2010); Comm. v. Clarke, 2011 WL 2409894 (Mass. June 17, 2011), with People v. Andrews, 2011 WL 1827891 (Sup. Ct. Kings 2011); People v. Kabre, 28 Misc 3d 307 (Crim. Ct. NY 2010); Ellis v. United States, 2011 WL 2199538 (E.D.NY June 6, 2011).
  • In People v. McLartey, 6762/06, NYLJ 1202398872974, at 1 (Sup., NY, Decided June 22, 2011), at the time of his plea, the defendant informed the court that he was a United States citizen.  The defendant was actually born in Jamaica and entered the United States in 2003 as a lawful permanent resident. According to the defendant, he believed he was a citizen, having derived his citizenship through his mother who was naturalized in 2009. For the purpose of the decision, the court assumed Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applied and undertook the Strickland two prong analysis test.  Strickland v. Washington, 466 U.S. 668 (1964). The Court found that the defendant failed to establish that “counsel would have had any reason to question defendant’s belief that he was a citizen.”  Padilla does not require an attorney to counsel a client, who professes to be a United States citizen, of immigration consequences.
  • In People v. Ramon Mercado, 1747-2000, NYLJ 1202499022183 at 1 (Sup Ct. Bronx Co., decided June 23, 2011), the court denied the defendant’s request to withdraw his previously entered plea of guilty to the crime of attempted criminal sale of a controlled substance, in violation of Penal Law Sections 110/220.39, finding that the defendant could not establish prejudice under either the state or federal standard.  The defendant, who had entered the United States illegally, alleged that his plea counsel failed to inform him of the immigration consequences of his plea and thus his plea should be vacated pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  The court noted that the defendant’s allegations were vague, conclusory and wholly unsupported and found that the defendant, who was sentenced to probation following his plea, received effective assistance of counsel.  The court stated that the defendant  “failed to establish by a preponderance of the evidence that his attorney . . . did not advise him that pleading guilty would affect his ability to lawfully remain in this country” and that “[i]t is axiomatic . . . that the defendant was subject to deportation well in advance of entering his guilty plea and nothing presented to this court indicates or remotely suggests that the deportation proceedings against him is predicated exclusively on the instant conviction.”Thus, courts may decide that in situations where the defendant entered the United States illegally or where there are other reasons for deportation that pre-date the plea, a motion to withdraw a plea based upon Padilla v. Kentucky, may be denied.
  • In People v. Cristache, September 13, 2010 SlipOp 20370 (Hon. Joseph A. Zayas, Queens Co.), the court in a well reasoned decision, finding that “the defendant failed to demonstrate ‘that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial, ’”denied the defendant’s motion to withdraw his guilty plea.  The defendant, a Romanian refugee in possession of a green card, pleaded guilty in six misdemeanor cases pursuant to a plea agreement whereby his pleas would be vacated if he successfully completed a drug treatment program.  The defendant ultimately failed to complete the drug program and was sentenced to a period of incarceration.  Unlike the defendant in Padilla v. Kentucky, 599 US ___, 130 S.Ct. 1473 (2010), the defendant did not plead guilty to any offenses which would clearly have automatically subjected him to deportation and his plea counsel advised him that if he failed to complete drug treatment, “he would have immigration consequences.” The defendant now faces deportation.  The court discussed the grave and unforeseen immigration consequences for non-citizen defendants who enter drug treatment courts throughout New York State.  The court found defense counsel’s warnings sufficient, although it noted that “it would have been better practice for plea counsel here to provide additional advice,” i.e., that a guilty plea to a removable offense would place the defendant in jeopardy even if he successfully completed drug treatment.
  • In People v. Bennett, 2005 BX032194, NYLJ, page 20 (Sup. Ct. Bronx Co., June 7, 2010), the court, citing Padilla v. Kentucky, ____ U.S. ______, 130 SCt 1473 (2010) and Strickland v. Washington, 466 U.S. 688 (1984), ordered that a hearing be held to determine whether the defendant’s guilty plea should be vacated because he relied on incorrect advice from his counsel regarding the immigration consequences of his plea.  The defendant alleged that he pleaded guilty to criminal possession of marijuana in the fifth degree, with a promised sentence of a conditional discharge and seven days of community service, after his attorney informed him that, even with a prior guilty plea to the same charges, the defendant would not have any immigration consequences and then “as an afterthought, said he did not think it would.”  The defendant’s efforts to change his immigration status from that of a legal permanent resident alien to a United States citizen have been thwarted due to his guilty pleas and he has now been deemed deportable. Clearly, the Padilla decision has removed immigration from the list of collateral consequences and requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction.  In this case the hearing will be held to determine if the defendant’s attorney’s actions complied with the standards set forth in Strickland.
  • In People v. Gravino and People v. Ellsworth, 2010 WL 1849361, 2010 NY Slip Op. 04025, New York Law Journal, p. 50, May 12, 2010 (emphasis added), the Court held “that SORA registration and the terms and conditions of probation are not direct consequences of a plea – in other words, that the judge’s failure to mention them does not, by itself, demonstrate that the plea was not knowing, voluntary and intelligent.  It does not necessarily follow, though, that non-disclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea.  There may be cases in which a defendant can show that he pleaded guilty in ignorance of the consequence that, although collateral for purposes of due process, was of such great importance to him, that he would have made a different decision had that consequence been disclosed.”
  • In People v. Williams, April 27, 2010 NYLJ p. 41 (3d Dept. April 22, 2010), the Third Department reversed the County Court’s denial of the defendant’s CPL § 440.10 motion to withdraw his plea and ordered a hearing.  The Court held that “[i]nasmuch as defendant asserts that he would not have pleaded guilty but for counsel’s representation that doing so would not subject him to deportation, defendant’s ineffective assistance of counsel claim impacts the voluntariness of his plea and survives the waiver of his right to appeal.”
  • The United States Supreme Court recently issued a landmark decision in the area of collateral consequences and the Sixth Amendment right to counsel.   Padilla v. Kentucky, 08-851.  In a 7-2 decision, the Court held that “counsel must inform her client whether his plea carries a risk of deportation.”  The court reasoned that “[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”  Padilla, a lawful permanent resident of the United States, who served in the United States Army in Vietnam,  pleaded guilty, in the Commonwealth of Kentucky,  to transporting a large quantity of marijuana in his tractor-trailer.  Padilla claimed “that his counsel not only failed to advise him of the possibility of being deported, but told Padilla he had nothing to worry about because he was in the country for so long.   Padilla alleged that had he known the consequence he would not have pleaded guilty. In its decision, the Supreme Court “had little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. ” However, the Court remanded the case for the lower court to determine if Padilla is entitled to withdraw his plea and go to trial noting that such relief “will depend on whether [Padilla] can demonstrate prejudice as a result [of counsel’s ineffective assistance].”
  • People v. Harnett, February (2010 WL 652988) (3d Dept. 2010). Split decision of the Third Department held that the trial court was not required to warn a defendant who pleaded guilty to a sex offense that he may face subsequent confinement pursuant to Article 10 of the Mental Hygiene Law, the Sex Offender Management and Treatment Act (the “SOMTA”). The Court, citing People v. Catu, 4 NY3d 242, 244 (2005), held that “[c]onsidering the … lengthy SOMTA process — with its numerous civil procedural steps that must be followed before a final determination is made — this Court finds that it cannot be reasonably said that the potential for future civil confinement or intensive supervision of defendant is an immediate, definite or automatic result of his guilty plea.” Two judges dissented.
  • People v. Rivadeneira, December 29, 2009 NYLJ at p. 27.  The defendant a non citizen legal resident moved to vacate her plea of guilty to one count of attempted Petit Larceny.  The defendant alleged that her “primary concern” during the pendency of the case related to her possible deportation.  Counsel who represented the defendant at the time of the plea,  filed an affidavit saying that he “erroneously told [the defendant] that the offered plea would not give rise to immigration consequences.”  The defendant contends that she relied on counsel’s representation and argued ineffective assistance of counsel.  The People responded that it is not the plea in this case that created immigration consequences, but the defendant’s prior federal drug conviction.  The court denied the defendant’s motion noting that “deportation is a collateral consequence of a conviction” and the defendant failed to establish that she informed her attorney of her federal conviction and did not deny the People’s assertion that her plea to the B misdemeanor alone would have triggered immigration consequences. Therefore she failed to establish that his advice, given the specific circumstances of her case was deficient” nor that but for counsel’s error she would not have pleaded guilty.
  • People v. Gillard, NYLJ  at pages 28-29 ,(Criminal Court, Kings Co., August 26, 2009).  In denying the defendant’s motion to withdraw his plea, the court held that the defense counsel’s failure to inform the defendant of the collateral consequences of his guilty plea did not rise to the level of ineffective assistance of counsel.  The defendant alleged that his attorney never advised him of the consequences his plea to disorderly conduct would have on his employment as a substance abuse counselor.
  • In People v. Gustavo Nunez, NYLJ p. 20, (Crim Ct. Kings Co, Match 9, 2009), the defendant alleged that he received ineffective assistance of counsel because he was misinformed about the collateral consequences of his plea. The court denied the defendant’s motion to withdraw his plea, finding that when asked at the time of his plea if any other promises were made to him, the defendant failed to mention the affect on his immigration status and  “it [was] apparent that at the time the Defendant entered his plea of guilty, he was more concerned with remaining at liberty than with any future collateral immigration consequences his plea might entail.”
  • In People v. Angelo Grace, NYLJ. p. 29, February 23, 2009, the First Department denied the defendant’s motion to withdraw his plea finding, in part, that although the court failed to inform the defendant of the mandatory fee and surcharges that did not alter the fact that the defendant knowingly, voluntarily and intelligently entered his plea.
  • In People v. Maria P. Nicholas (2008 WL 399023) , NYLJ, page 28, the Jefferson County City Court granted the defendant’s motion to withdraw her plea to a violation because she was not informed that the People had the right, pursuant to Criminal Procedure Law §160.55, to ask that the plea not be automatically sealed. The court found that the possibility that the plea would not be automatically sealed is a direct consequence of the plea.
  • United States Court of Appeals for the Second Circuit: Zhang v. United States, 506 F.3d 162, (2d Cir. 2007) – Although not deciding whether “‘automatic’ deportation is a collateral consequence of a guilty plea that neednot be mentioned or a direct consequence that required discussion during the plea proceeding,” the Second Circuit found that a sentencing court that has decided to address the topic and warn the defendant that deportation could or may result from the plea acted appropriately based upon the facts in this case. The Court went on to state that to require a sentencing court to fully elaborate on the immigration consequences of a guilty plea “a notoriously complex and constantly shifting area of the law would likely have the perverse effect of encouraging sentencing courts simply to avoid the issue entirely, lest a reviewing court to find a statement to be, in retrospect, misleading.”
  • Second Department: People v. Argueta, 46 A.D.3d 46 (2d Dept. 2007) – The Second Department affirmed the lower court’s denial of the defendant’s motion to vacate his plea where defense counsel “unambiguously advised the defendant that deportation was a possible consequence of his plea” even though it was “virtually certain that [the defendant] would be deported following his conviction.”
  • Criminal Court, Sullivan County: In response to the defendant’s motion, pursuant to C.P.L. § 440, to withdraw his plea, the court declined to expand the holdings in People v. McDonald, 1 NY3d 109 (2003) and People v. Salazaar, NY Slip. Op. 516470 (Crim Ct, City of NY 2006), to permit withdrawal of a plea where the affect on the defendant’s immigration status was not discussed prior to the guilty plea. In McDonald and Salazaar, the courts found, if an attorney gives incorrect advice, as opposed to no discussion at all, regarding immigration status, coupled with a reasonable probability that defendant would not have pled guilty but would have gone to trial, is substandard representation and may have been ineffective assistance of counsel. People v. Aguilar (2007).
  • Criminal Court, Kings County: The immigration consequences of the defendant’s plea are collateral and thus the court is not required to advise the defendant of any immigration consequence when the defendant pleads guilty to a misdemeanor. People v. Clark (2007).
  • Criminal Court, New York County: The judge held that driver’s license suspension is a collateral consequence of the guilty plea to any misdemeanor or felony defined in Articles 220 or 221 of the Penal Law and thus neither the court or defense counsel need warn the defendant of the license suspension. People v. Cecil Morgan (2007).
  • Criminal Court, New York County: The defendant moved to withdraw his guilty plea alleging, in part, that his counsel incorrectly advised him that his plea would not affect his immigration status. The court denied the defendant’s motion finding, in part, that he failed to “provide . . . facts that would convince this court that had he known of the immigration consequences at the time of his plea those potential consequences would have overridden his desire for immediate release.” People v. Edwin Salazar (2006).
  • Supreme Court, Richmond County: The defendant claimed his counsel incorrectly appraised him of the deportation consequences of his plea. Following a hearing, the court denied the defendant’s motion to withdraw his plea, finding that “[w]hile distinctions made for aggravated felonies under federal immigration law with respect to restrictions on discretionary relief may not have been detailed to the defendant, the advice he did receive was essentially correct.” The court went on to warn that “[i]n order to avoid the difficulties presented by these issues in future cases, it is recommended that criminal practitioners, as well as courts, more thoroughly familiarize themselves with the immigration consequences of criminal actions.” People v. Nikovic (2006).
  • Second Department: Although not unsympathetic to the plight of the defendant and other non-citizens subject to removal or deportation after decades of residence in the United States, the court denied the defendant’s motion to vacate his plea to a misdemeanor drug possession charge. The guilty plea will most likely lead to the defendant’s deportation. People v. Frank Artusa (2006).
  • First Department: The court found that “[e]ven assuming the truth of defendant’s assertion that his attorney misadvised him that his plea would not result in deportation, that allegation was insufficient to establish ineffective assistance, because the defendant never claimed that he would have gone to trial had he known the pleas’ immigration consequences.” People v. Bao Lin Xue (2006).
  • Criminal Court, New York County: A defendant who was not advised that his plea to a misdemeanor drug charge would automatically result in his deportation is not entitled to withdraw his plea. The fact that the Immigration and Naturalization Law was amended in 1996 to virtually mandate deportation of an alien convicted of a crime that relates to drugs, does not alter the 1995 Court of Appeals holding in People v. Ford, that deportation is a collateral consequence and not a direct consequence of a plea. People v. Dejesus (2006).
  • First Department: the impact a plea may have on the defendant’s driving record is a collateral consequence and as such the court is under no obligation to inform the defendant of the possible consequence. People v. Cornejo (2006).
  • The Court of Appeals has clearly held that a trial judge has duty to advise a defendant of the direct consequences of a plea. People v. Catu, 4 N.Y.3d 242 (2005) (post release supervision is a direct consequence of a determinate sentence); People v. Neu, 1 A.D.3d 798 (3rd Dept. 2003) (although a direct consequence of a plea, a defendant need not be advised of the requirement to pay the mandatory surcharge)
  • Supreme Court of the State of New York: Judge has no duty to advise a defendant that the defendant’s plea would subject the defendant to the registration requirements of the Sex Offender Registry Act (SORA). People v. Brussel (2005).
  • Judge has no duty to advise a defendant of the effect the defendant’s plea may have on the defendant’s employment. People v. Nuzzi, 6 Misc.3d 127(A) (App. Term. 2004)
  • This Court of Appeals case instructs judges that defense counsel’s incorrect advice to a defendant of the collateral consequences of a plea may constitute ineffective assistance of counsel. Once it is established that the defendant received incorrect advice, the judge must determine whether by rendering the incorrect advice the defense “counsel’s representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on a trial.” People v. McDonald, 1 N.Y.3d 109 (2003) (the collateral consequence at issue was deportation); see also People v. Becker, 9 Misc.3d 720 (Crim. Ct. Queens Co. 2005) (the collateral consequence at issue was the possibility of eviction).
  • It is within the judge’s discretion whether or not to advise a defendant of a collateral consequence of a plea. Silmon v. Travis, 95 N.Y.2d 470 (2000) (the collateral consequence in Travis dealt with a parole issue).
  • This seminal Court of Appeals opinion notes the important distinction between collateral and direct consequences of criminal convictions. Judges are responsible for informing defendants of direct consequences, not collateral consequences. “Collateral consequences ‘are peculiar to the individual and generally result from the actions taken by agencies the court does not control.’ A direct consequence ‘is one which has a definite, immediate and largely automatic effect on defendant’s punishment.'” People v. Ford, 86 N.Y.2d 397, 657 N.E.2d 265, 633 N.Y.S.2d 270 (October 24, 1995)
  • A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences. The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that “the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Boykin v. Alabama, 395 US 238 (1969). See also People v Harris, 61 NY2d 9, 19; North Carolina v Alford, 400 US 25, 31.