On November 19, 2013, the New York Court of Appeals held that due process under the New York State Constitution compels trial courts to apprise FN defendants that they may be deported as a consequence of pleading guilty to a felony. People v. Peque, 2013 WL 6062172 (N.Y. Nov. 19, 2013). As the U.S. Supreme Court observed in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Peque Court reasoned that defendants must be given this notice because deportation is so important and can have such a tremendous impact on the defendant. In this regard, the Court of Appeals overruled a portion of its prior decision, People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270 (1995), where it held that a court's failure to advise a defendant of potential deportation could never affect the validity of the defendant's plea.
The Peque Court, however, was careful to limit the scope of its ruling. The failure of the trial court to advise a defendant of the possible immigration consequences of a plea is not, by itself, an automatic justification for vacating a plea that was otherwise appropriate. To succeed, the defendant must establish a reasonable probability that he would have rejected the plea had the court warned of the possibility of deportation.