NY top court requires deportation warning

November 19, 2013 By Michael Virtanen Associated Press
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ALBANY— New York trial judges must warn non-citizens they may be deported before allowing them to plead guilty to felonies, the state’s highest court ruled Tuesday.

Defendants are entitled to be notified of such “a grave impact and frequent occurrence,” the Court of Appeals said. The majority cited increased deportations by immigration authorities under tougher U.S. laws and enforcement policy.

The court, divided 5-2, said the new requirement is grounded in the constitutional right to due process.

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“Although New York courts have no role in ICE’s enforcement decisions, they do render judgments of conviction which routinely ensure the defendants’ eventual transfer, by way of state correctional authorities, into federal custody, where they will almost certainly be deported,” Judge Sheila Abdus-Salaam wrote.

She rejected prosecutor arguments that Immigration and Customs Enforcement has considerable discretion in deciding whom to deport. The roughly 188,000 non-citizen convicts now deported annually, up from about 37,000 when the federal law was amended in 1996, “would probably beg to differ on the point, and rightly so,” she wrote.

Judges Victoria Graffeo, Susan Read, Jenny Rivera and Chief Judge Jonathan Lippman agreed with Abdus-Salaam that trial judges must advise defendants of that likely consequence “as a matter of fundamental fairness.”

In a dissent, Judges Eugene Pigott Jr. and Robert Smith said defense lawyers are already required to tell their clients they could be deported under a 2010 U.S. Supreme Court decision. Pigott wrote that the majority is giving defendants “no practical benefit” with its approach. The dissenters concluded deportation remains “a strictly collateral consequence” of pleading guilty, not something judges must warn defendants about as a constitutional issue, though a state statute separately requires it.

The court sent one case back to trial court where the defendant, a legal permanent resident convicted of a drug felony, can argue he would not have pleaded guilty if he had known he would be deported. It will be up to the trial judge to hear those arguments and decide whether to throw out his guilty plea and let him go to trial.

In two other cases, involving another permanent resident convicted of a drug felony in 1992 and a man in the country illegally who was convicted of rape, the court upheld their convictions.

In other dissents, Lippman and Rivera said convictions should be vacated when judges fail to warn defendants they may be deported.

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