In a significant change from New York State precedent, the New York Court of Appeals held that the failure to advise a non-citizen defendant of the immigration consequences of his or her plea amounts to a due process violation. The landmark ruling is contained in People v. Peque, 2013 WL 6062172 (N.Y. 2013) in which the Court reasoned that removal is a plea consequence of such “tremendous importance, grave impact, and frequent occurrence” that a non-citizen defendant is entitled to notice that it may result from a plea and held that due process compels a judge to apprise a non-citizen defendant that he or she may be deported as a consequence of a guilty plea to a felony. The court overruled the portion of its prior decision in People v. Ford, 86 N.Y.2d 397 (N.Y. 1995), that held that deportation was a collateral consequence of a conviction.
We will await and see how the ruling in People v. Peque will affect post-conviction motions to vacate convictions in which non-citizens were not advised of the immigration consequences of their plea. Some in the legal and academic community are concerned that such rulings, recently evidenced in the Federal Rules of Criminal Procedure, supplant the lawyer’s role to make sure that a defendant’s due process rights are preserved. Such rulings and changes in procedure beg the question whether judges are now taking over the role of lawyers who are entrusted with the duty to make sure that a defendant’s due process rights are not violated.