Change to Model Plea Colloquy in NYS Courts
Updated: Jan 26, 2021
Please be advised that the NYS Unified Court System has issued a new model plea colloquy regarding potential immigration consequences upon a pleading guilty to a crime. The new CJI model colloquy advises Judges in every case to ask the defendant:
“Do you understanding that if you are not a United States citizen, your plea of guilty will subject you to deportation, exclusion from the United States, and denial of naturalization”;
“Do you understand that neither your attorney, nor I, nor anyone else can guarantee that you will not be deported, excluded from the United States, or denied naturalization?’
“If your deportation, exclusion from the United States or denial of naturalization is ordered, in whole or in part, because of this plea of guilty, you will not be permitted to have the plea set aside. So if you plead guilty, it must be because you are guilty and you are receiving a benefit in the plea agreement, regardless of whether you are deported, excluded from the United States, or denied naturalization. Do you understand?”
It has come to our attention that some Judges presiding over criminal cases in New York State are relying on the new CJI Model Colloquy in plea allocutions and are warning defendants that “your plea of guilty will subject you to deportation.”
This language differs significantly from the language in CPL 220.50(7), also known as a Peque warning, which requires the court to, “advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.” See CPL 220.50(7); People v. Peque, 22 N.Y.3d 168 (2013). Although the holding in Peque involved a felony and CPL 220.50(7) specifically relates to a felony guilty plea, the Appellate Term has now applied the general immigration warning requirement set forth in Peque to misdemeanor offenses. People v. Bello, 55 Misc.3d 152 (App. Term, 2nd Dept. 2017).
This change in the language used by some Judges is extremely troublesome and inappropriate as the statement that a defendant “will” be deported:
May be inaccurate and Criminal Court Judges generally do not have sufficient expertise to make an immigration consequence determination;
May contradict the advice and analysis provided by defense counsel, thus damaging and undermining attorney/client relations;
May cause defendants considerable confusion and may lead to rejections of otherwise favorable guilty pleas;
Contradicts Padilla v. Kentucky and may limit Post Conviction Relief to address immigration harmful pleas where the requisite advice was not provided or inaccurately provided by counsel.
1. The CJI Language May be Incorrect and Criminal Court Judges are Not Obligated to and are in No Position to Make an Immigration Consequence Determination:
In many cases, the statement that the plea of guilty “will” subject the defendant to deportation if they are not a United States citizen is inaccurate. The immigration consequences of a plea are wholly dependent on and require an individualized analysis of a variety of factors, including the individual’s immigration status, immigration and criminal history, and the specific statute and subdivision being pled to.
Not all criminal convictions will render a noncitizen deportable or cause them to lose eligibility for immigration benefits or defenses to removal. In fact, the same conviction could render one noncitizen deportable and removable from the United States while not rendering another noncitizen deportable. For example, a Lawful Permanent Resident (LPR) who has been in the United States for more than 5 years after receiving his Lawful Permanent Resident status, if convicted of one Crime Involving Moral Turpitude (CIMT) will not be rendered deportable. However, an LPR who has been in the United States less than 5 years after receiving his LPR status could be render deportable if convicted of a CIMT punishable by more than a year in jail. In this instance, dependent on other factors, the deportable LPR may still be eligible for cancellation of removal in immigration court, a defense that will allow him avoid deportation and to remain in the United States lawfully.
Similarly, some noncitizens are already removable, for instance because they are undocumented or have prior convictions. For these individuals, absent post-conviction relief on the prior convictions, being rendered removable is not the issue since they are already removable. While a noncitizen may be removable from the United States, they could still be eligible for immigration benefits or relief from removal, such as cancellation of removal, that would allow them to lawfully remain in the United States. If a noncitizen qualifies for immigration relief or a defense to removal, then they are not deportable, and the Courts advice is wrong.
Thus, not every guilty plea will render every noncitizen removable from the United States and an individual analysis by the defendant’s attorney is required to make an accurate determination of the potential consequences.
Since the court does not know many of the factors set forth above, much of which is confidential, the court cannot be in a position to determine that a particular plea will result in anything. Furthermore, the criminal court should not have the necessary immigration information to make such a determination and, even if they did, the criminal court in general does not have the requisite expertise to provide such an analysis. Therefore, a blanket statement that a plea will render a noncitizen deportable is inaccurate and inappropriate.
The CJI also advises that Judges should not begin the colloquy by asking the defendant whether they are a citizen. See People v. Williams, 178 A.D.3d 1095, 1096 (AD 2d 2019). Nevertheless, defense counsel should be objecting to any inquiries by the Court as to the defendant’s immigration status and neither defense counsel nor the defendant should be putting any information as to the defendant’s immigration status, immigration history, or contents of the Padilla advisal on the record. See Regional Immigration Assistance Center 4 Practice Advisory on Representation of Non-Citizen Clients and the Confidentiality of Immigration Status and Advice, February 7, 2019.
Finally, it is not the Court’s role to provide advice regarding the immigration consequences of a particular plea. Everyone should be familiar with defense counsel’s obligation under Padilla v. Kentucky, 466 U.S. 668 (2010) to affirmatively advise noncitizen clients about the immigration consequences of criminal convictions and to, whenever possible, mitigate these consequences. This obligation directly relates to defense counsel’s representation alone and creates absolutely no obligation or duty for a court. The court’s sole obligation is codified at CPL 220.50(7), also known as a Peque warning, and is only a generalized statement, upon a defendant entering a guilty plea to a felony, that IF the defendant is not a citizen, then the plea of guilty MAY result in their deportation and other immigration consequences. See People v. Peque, 22 N.Y.3d 168 (2013). The courts obligation is to warn the defendant of the potential for immigration consequences if they are not a citizen, not to outright tell (advise) the defendant that he will be deported.
Therefore, to advise a defendant that they will be deported rather than may, is wholly inappropriate and may cause some defendants to reject a favorable plea disposition thinking they have nothing to lose by going to trial when, in fact, we know that they could incur more severe immigration consequences as well as lengthier prison sentences.
2. The CJI Language May Contradict the Advice and Analysis Provided by Defense Counsel, Thus Undermining Attorney/Client Relations and Causing Favorable Plea Offers to be Rejected:
As you know, it often takes a lot of time and effort to build a relationship with your client in which they trust you and are honest with you. This is often is even more difficult when the client is a noncitizen as the fear of the government and removal from the United States can cause individuals to be less forth coming with information regarding their immigration status and history. Furthermore, as a result of Padilla, criminal defense attorneys, with the help of the Regional Immigration Assistance Center, are spending an immense amount of time analyzing the potential immigration consequences of their client’s criminal charges and potential plea offers, explaining to their client the potential risks, and negotiating in an attempt to mitigate the risks. In addition, as you know, it can also take a lot of time and effort adequately explain everything so that your client agrees to take a plea offer, even if it is extremely beneficial in terms of mitigating the immigration consequences. As we have seen, with the knowledge of the potential immigration consequences, defense counsel has been successful in obtaining plea offers that mitigate the immigration consequences.
However, the reality is that defendants most often see the Judge in a criminal case as the ultimate authority. Therefore, if you, as defense counsel, have explained to your client why the current plea offer may mitigate immigration consequences and then the Judge states that the guilty plea “will” make the client removable from the United States, this could cause your client to question and distrust the advice you provided. The fact is that under the CJI, the Judge will advise a noncitizen that the plea will render the him/her deportable and that neither the court nor his/her attorney can guarantee that they will not be deported on every plea disposition, no matter the disposition or the defendants underlying circumstances. Regardless of how inaccurate and inappropriate such a statement from the Judge may be, the reality and serious concern is that such a statement from the Judge can cause a noncitizen client to doubt and mistrust their attorney and potentially refuse a plea offer, which may otherwise have extremely benefited their immigration case. Thus, such a statement by the Judge works to undermine the attorney/client relationship and effort of criminal defense attorneys to meet their obligation under Padilla. This, in turn, can render such advise futile when, in fact, it may be the most useful advice provided to the defendant.
3. The CJI Language Undermines Padilla v. Kentucky and Can Limit a Defendant’s Ability to Address Immigration Harmful Pleas Where the Requisite Advice Was Not Provided by Counsel:
Finally, the warning under the CJI that any guilty plea “will” render a noncitizen deportable, in combination with the Second Department’s decision in People v. Moreno, 58 Misc.3d 160 (A) (App. Term, 2nd Dept. 2018), could, in effect, invalidate all ineffective assistance of counsel claims based on Padilla, in turn rendering the decision in Padilla meaningless. As you know, an individual can file a motion under CPL 440.10 to vacate a prior conviction based on a violation of his Constitutional right to effective assistance of counsel, in the event his criminal defense attorney failed to meet their obligation under Padilla, for failing to advise as to the immigration consequences of his plea, failing to accurately advise as to the immigration consequences, and/or failing to make appropriate efforts to mitigate the consequences. Vacature under CPL 440.10 may often be the last hope for a noncitizen to avoid removal from the United States.
However, in Moreno the Second Department denied a CPL 440.10 motion finding that the defense attorney’s deficient advice regarding the immigration consequences of the defendant’s plea did not have the requisite prejudice on his defense under either the Federal or State constitutions to warrant vacature, since the defendant was subsequently made aware by the court that he “will be deported”. See Moreno, 58 Misc.3d 160(A)(Client’s guilty plea clearly rendered him ineligible for Deferred Action for Childhood Arrivals (DACA) despite his criminal defense attorney’s inaccurate advice that the client only “could have problems with immigration” but that he shouldn’t worry.)
Therefore, even though, as explained above, the Court’s statement that a noncitizen “will” be deported is often incorrect and is not based on any analysis of the individual’s immigration history or the specific plea, such a statement, in cases in which a criminal defense attorney does not properly advise on or attempt to mitigate potential immigration consequences in violation of Padilla v. Kentucky, eliminates any potential recourse by the defendant. Consequently, the inappropriate advice given by the Judge in accordance with the CJI in combination with the Second Department’s decision in Moreno essentially improperly renders the Supreme Court’s decision in Padilla worthless.
What Should Defense Counsel Do?
Please contact us if you witness any judge using the CJI language and/or advising that a defendant “will” be deported.
It is very important for you to sit down with your client and fully explain the immigration analysis and the details of the plea offer. It is also important to advise your client as to what the Judge may say and explain how this does not change the advice you provided or the analysis of the potential consequences of the plea offer. As always, our office is here to meet with you and your client virtually, by telephone, or in person (when it is safe to do so) to assist in explaining the immigration consequences and answer any questions they may have.
Finally, where appropriate, given the above concerns, defense counsel should object to a colloquy that advises that the defendant “will” be deported.
Please contact our office with any questions regarding the above. Also, upon request, we can assist in drafting a letter to particular judges or appear in court with you to assist in educating the presiding judge.