People v. Juan Jose Peque


AD3 order dated october 6, 2011, affirming judgment of conviction. Decision below: 88 A.D.3d 1024, 930 N.Y.S.2d 492. Lippman, Ch.J., granted leave July 30, 2012. (New leave grant.)

ISSUES PRESENTED: (1)Whether the trial court's failure to inform the defendant, an undocumented alien, of the deportation consequences of his guilty plea rendered the plea unknowing and involuntary. (2) Whether defense counsel's failure to advise the defendant about the deportation consequences is an issue that can be considered on direct appeal, as opposed to 440 motion.

People v. Juan Jose Peque

People v. Richard Diaz

People v. Michael Thomas


Issues before the Court: Whether due process requires that a trial court, prior to permitting a non-citizen defendant to plead guilty to a felony, inform the defendant that, if he is not a citizen of the US, he may be deported as a result of the plea; moreover, assuming there is such a requirement, what is the remedy on direct appeal from the judgment of conviction for the trial court’s failure to so advise the defendant.


Held: Due process requires the court give such an advisory, and no preservation is required to raise the issue on direct appeal.  However, the lack of the advisory does not entitle the defendant to automatic vacatur of the plea.  The remedy, instead,  is for the appellate court to remit the case back to the trial court for an inquiry into whether there is a reasonable probability that, had the advisory been given, the defendant would not have pleaded guilty and would have gone to trial; if so, his plea should be vacated.  The Court left open the question whether the same is true for a misdemeanor plea.


CAL Observes: The Court’s Faux-Solomonic decision splits the baby in two, satisfying no one.  On the one hand, those guilty plea defendants lucky enough to have had trial lawyers skilled and professional enough to have filed  notices of appeal --despite the inevitable, omnipresent, and here-ineffective appeal waiver--will have a nice little appellate issue on their direct appeals: If no court advisory was given and the record does not contain anything which would have triggered an objection by the defense, then no preservation is required and the defendant will be entitled, on appeal, to a remittal back to the trial court to show that he would not have pleaded guilty had the advisory been given.  (At that point, the defendant’s good luck will probably come to an end, though on remittal, like Macbeth,  he be “tied to a stake” and “bearlike...must fight the course” [Act V, Scene 7].)

On the other hand, if the defendant does not have an available direct appeal, or if the record does contain some fact which should have motivated the defendant to register an objection, then the defendant is out of luck.  A 440 would probably not lie since the issue could have been raised on direct appeal. Or if a direct appeal is available but the record is unclear and an objection would thus be required, the defendant would be out of luck–both on appeal (because the issue is unpreserved) and on 440 (because the issue could have been raised on appeal but for lack of an objection).  Clear?

Also, the People are not going to be happy: A new, pesky, due process right has been added to the defense arsenal.  There will be a number of inconvenient “Peque remittals” which will give defendants the possibility of some relief.  Additionally, for those defendants filing traditional Padilla 440's (based on trial counsel’s IAC), the trial court’s independent due process violation will help the traditional Padilla claim get traction.  

Despite CAL’s above-expressed views, none of this is clear, so years of clarifying litigation can be expected–including on the issue left open: whether the due process requirement extends to misdemeanors (the scenario most likely to entrap unwary defendants).  

What should the practicing trial defense lawyer take away from this decision?  The answer is elegantly simple.  File notices of appeal.