New York’s Highest Court Finds Non-Citizen’s Plea Cannot be Vacated, Finding Notice Was Provided During Arraignment

New York Criminal Lawyers need to closely examine the immigration consequences of any plea by a non-citizen.  New York’s highest court recently decided a case in which it found that a lawful permanent resident could not vacate his conviction for failure to receive advice of potential immigration consequences because he was given a notice during his arraignment discussing the potential immigration consequences for non-citizen defendants. Under New York law, if a criminal defendant is not a U.S. citizen, a court must notify a defendant that “he or she may be deported as a consequence of a guilty plea to a felony.”

In the case before the New York Court of Appeals, the defendant was arrested and charged with burglary in the second degree in 2011. The defendant was born in the Dominican Republic but was a lawful permanent resident of the United States. During the defendant’s arraignment, the state filed a “Notice of Immigration Consequences” with the court and gave a copy to defense counsel. The notice stated in English and Spanish that if the defendant was not a U.S. citizen, a guilty plea, conviction after a trial, or youthful offender adjudication “subjects you to a risk that adverse consequences will by imposed on you by the United States immigration authorities,” including removal from the United States. The notice advised defendants to “consult with your attorney for advice specific to your circumstances.” The notice further advised that “deportable offenses” included “burglary, robbery, receipt of stolen property, or another other theft-related offense” deemed an aggravated felony under immigration law. It also stated that if the crime was an aggravated felony, or if you have not been a lawful permanent resident for at least five years with at least seven years’ continuous residency and the crime is a deportable offense, there would be additional consequences, including ineligibility for cancellation of removal.

Eight months later, the defendant pleaded guilty to attempted burglary in the second degree. During the plea colloquy and allocution, the court did not discuss potential immigration consequences and the defendant did not ask about potential immigration consequences. He was sentenced to five years of incarceration and three years of post-release supervision. Four years later, the defendant filed a motion under CPL 440.10 to vacate his conviction based his attorney’s failure to inform him of potential immigration consequences as a result of his plea. The defendant claimed that his attorney did not inform him of the effects of pleading guilty on his immigration status and that he was not told that he could lose his lawful permanent resident status.

The trial court denied the defendant’s motion to vacate the plea and the appeals court upheld the decision. The court stated that a claim that a court failed to inform a defendant of potential immigration consequences to a plea must be preserved. To preserve such a claim, the court said that a defendant must move to withdraw the plea or file a motion to vacate the judgment of conviction. The court held that only where a defendant had no practical ability to object to an error in a plea allocution, preservation was not required. The court held that here, the record showed that the defendant was given the “Notice of Immigration Consequences” by his lawyer, and the defendant did not raise any questions regarding possible immigration consequences of his conviction or move to withdraw his guilty plea. Therefore, because the defendant did not preserve the claim, the exception to the preservation doctrine did not apply, and his conviction was affirmed.

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If you have been implicated in a crime, contact a New York criminal attorney as soon as possible. Tilem & Associates, PC provides superior representation to individuals in New York City and surrounding counties. Our New York trial attorneys have been representing clients in New York for over 25 years and have the skill, knowledge, and experience to give you the representation you deserve. We provide clients the service, counsel, and support that best meets their individual needs and handle all types of criminal matters, including New York theft crimes, drug offenses, and allegations of violence. Contact Tilem & Associates, PC at 877-377-8666 for a free consultation to discuss your case with an attorney.

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