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Failing to consider Probation in sentencing because of Defendant's undocumented status results i

Issue: "whether an undocumented immigrant must be sentenced to a period of incarceration rather than to a term of probation because the continuing violation of federal immigration laws would constitute an automatic violation of the standard conditions of probation." Pp. 1.

The defendant is an undocumented immigrant. The issue in this case stems from the plea proceedings in his criminal matter. The defendant here was charged with aggravated DWI, DWI and aggravated unlicensed operation of a motor vehicle all arising out of a traffic stop. On January 8, 2013, he pled guilty to a class E felony of aggravated driving while intoxicated in full satisfaction of the charges. While the defendant sought probation instead of incarceration, the court stated that it would not sentence to probation but would instead impose incarceration. The reason being was that the lower court, if it placed the defendant on probation, wanted to avoid putting the defendant in direct violation of federal immigration law and, therefore, the conditions of probation (which was that the defendant was not to violate any laws.) The complication in this case was that probation requires that the defendant not violate any law but the lower court never determined whether it could amend the terms of probation. In the opinion of the lower court, by being undocumented and in this country, the defendant would immediately violate probation. At the sentencing proceeding, the defendant was sentenced to eight months of incarceration in addition to a mandatory fine, surchage, and license revocation. The appellate division reverses and discusses several issues:

The Appellate Division finds that the defendant could not waive his right to appeal because, People v. Brathwaite (263 AD2d 89), this Court noted that "[a] defendant may not waive his right to appellate review of certain claims, such as…constitutional claims" that "implicate a larger societal interest in their correct resolution which embrace[s] the reality of fairness in the process itself" (id. at 91 [internal quotation marks omitted]; see People v. Callahan, 80 NY2d 273, 280; People v. Seaberg, 74 NY2d 1, 9). Putting aside the separation of powers and preservation issues, the Court discusses the Due Process and Equal Protection arguments relevant to whether this was an appropriate sentence:

"While appellate courts in New York have not yet had occasion to directly address whether undocumented immigration status is an appropriate factor to consider for sentencing purposes, several of our sister states have done so, with inconsistent results." Pp. 6. In evaluating the differing approach of several states, the Court here decides that courts may consider a defendant's undocumented immigration status in imposing sentence and, accordingly, it is "impermissible for a sentencing court to refuse to consider a sentence of probation for an undocumented defendant solely on the basis of his or her immigration status. Doing so violates the Due Process and Equal Protection clauses of the Federal and New York constitutions by treating certain defendants differently from others based upon their undocumented presence in this state. In so doing, the Court held that "a defendant's undocumented immigration status may be a factor a court takes into account in determining whether to include probation as part of a sentence, but such status cannot be the sole factor a court relies upon in denying a probationary sentence and in imposing a term of imprisonment instead." Pp. 7-8.

Analysis: In applying the holding to this case, the lower court did not have to set down this continuing condition of probation. Indeed, The Department of Probation does not determine the conditions of probation, and such conditions are not dictated by or limited to the language contained in preprinted forms...Rather, the conditions of any defendant's probation are established in each case by the sentencing court." Pp. 8 (internal citations omitted). Furthermore, "nothing would have prevented the County Court from modifying the standard conditions of probation to provide that, while the defendant must obey all federal, state, and local laws, his undocumented immigration status would not be a basis, in and of itself, for the filing of a violation of probation petition. Thus, in deciding whether to impose or deny probation to a defendant who is an undocumented immigrant, a sentencing court may consider, in a proper case, potential ways to modify the standard conditions of probation if the defendant might otherwise be an appropriate candidate for probation." Pp. 8

Conclusion: "Since the County Court in this instance denied the defendant probation solely on the basis of the defendant's status as an undocumented immigrant, we vacate the sentence imposed and remit the matter to the County Court for resentencing in accordance herewith." Pp. 8.

The case is The People v. Cesar, 12-00569, NYLJ 1202732994807, at *1 (App. Div., 2nd, Decided July 22, 2015)

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