• 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.