22 NY3D 168 - People v. Peque

Rivera, J.

¶1(dissenting in People v Peque and People v Diaz, and concurring in People v Thomas). I concur with Judge Abdus-Salaam’s opinion in People v Thomas that “defendant Thomas’s challenge to the voluntariness of his plea must be evaluated in light of the practical and legal relationship between a criminal conviction and deportation at the time he pleaded guilty in 1992” (op of Abdus-Salaam, J., at 201), and as such, defendant is not entitled to relief for the reasons stated therein.

¶2I join the Chief Judge’s dissent in People v Peque and People v Diaz in all respects because I believe the trial court’s failure to advise a noncitizen that the plea may potentially subject defendant to deportation requires automatic vacatur.* I write separately because, in addition to all of the arguments so cogently and comprehensively discussed in the Chief Judge’s dissent, to the extent Judge Abdus-Salaam’s opinion grounds its *219due process analysis on the immigration status of noncitizen defendants, then violation of these defendants’ rights as so recognized mandates a status-based response. The “reasonable probability” test, however, is not status-based, but rather an individualized multifactor balancing test under which the defendant must establish prejudice.

¶3If deportation implicates due process for a noncitizen defendant, based solely on, and because of, that very immigration status and its attendant devastating consequences, then those consequences are no less consequential as an individualized matter. By locating noncitizen defendants in a rarefied criminal justice system—one that recognizes immigration status as the basis for a due process claim, but which simultaneously denies a status-based remedy—the opinion constructs an ultimately flawed legal framework.

Judges Graffeo and Read concur with Judge Abdus-Salaam; Judge Pigott concurs in result in an opinion in which Judge Smith concurs; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judge Rivera concurs in a separate opinion.

¶4In People v Peque: Order affirmed.

Judges Graffeo and Read concur with Judge Abdus-Salaam; Judge Smith concurs in result; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judge Rivera concurs in a separate opinion; Judge Pigott dissents and votes to affirm in an opinion.

¶5In People v Diaz: Order modified by remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Judges Graffeo and Read concur with Judge Abdus-Salaam; Judge Pigott concurs in result in an opinion in which Judge Smith concurs; Judge Rivera concurs in result in a separate opinion; Chief Judge Lippman dissents and votes to reverse in an opinion.

¶6In People v Thomas: Order affirmed.

¶7 I also agree with the Chief Judge’s dissent in Peque that requiring preservation is not reasonable. In my opinion, defendant should not be penalized by demanding preservation when at the time that defendant Peque entered a *219plea the law in New York specifically foreclosed the relief he now seeks (see People v Ford, 86 NY2d 397, 403-404 [1995] [finding deportation is a collateral consequence of a guilty plea and therefore the court has no duty to inform defendant of such consequence during allocution]; see also CPL 220.50 [7] [failure to advise defendant that guilty plea could result in deportation “shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction”]).