Citing an increase in deportation in recent years, a divided state appeals court has ruled that an undocumented immigrant should be given a chance to undo his guilty plea for sexual abuse because he was never warned in court that the conviction could send him out of the country.

The ruling, delivered by the majority of an Appellate Division, First Department, panel, comes even though the defendant, David Palmer, incorrectly told the Bronx Supreme Court at his plea hearing that he was a U.S. citizen.

In a lengthy dissent, Justice David Friedman argued that the four-justice majority relied on the wrong precedent in reaching its decision and that the defendant's statement about being a citizen absolved the trial judge from having to issue the deportation warning.

But the majority panel viewed the precedent differently. In addition, it ruled that Palmer's long-standing mental illness, coupled with the court record and his “rambling monologue” at sentencing, helped persuade it that the trial court should have engaged in a “more probing inquiry concerning his immigration status.”

The majority opinion, penned by Justice Sallie Manzanet-Daniels, and accompanying dissent, amounts to a weighty ruling that highlights a split in how certain justices understand the deportation-warning jurisprudence of People v. Peque, 22 NY3d 168 (2013), and People v. Brazil, 123 AD3d 466 (1st Dept 2014).

The Bronx District Attorney's Office, which represented the state in Palmer's appeal of his guilty plea, has not yet said whether it will seek to challenge in the Court of Appeals the majority ruling in State of New York v. Palmer, 2018 NY Slip. Op. 00638. In a phone message, Patrice O'Shaughnessy, an office spokeswoman, said, “We're still considering our options.”

Meanwhile, Palmer's appellate lawyer, Mark Zeno, an assistant attorney-in-charge at the Center for Appellate Litigation, made clear on Monday that he viewed the decision in favor of his client as vitally important for undocumented immigrants in New York state. Moreover, he indicated that it reinforced the need for broad deportation warnings for all defendants, especially as U.S. Immigration and Customs Enforcement under the Trump administration sends agents into courthouses in New York and beyond.

“I don't think that New York criminal courts should be in the business of asking defendants about their citizenship status,” Zeno said, “particularly at this time, when noncitizen defendants fear admitting that they're not citizens in open court because of the ICE presence there.”

While arguing that under Peque all defendants, regardless of circumstances, should get the deportation warning, he also said, “The defendant may have good reasons not to reveal his or her citizenship status to the court, and they may not be fully aware of what their citizenship status is, if they came [to the United States] as a child.”

In Palmer's case, the analysis of whether he was owed the warning by Bronx Supreme Court Justice Patricia DiMango, who handled his plea hearing, or by Bronx Supreme Court Justice Michael Gross, who handled sentencing, was made more complicated by his troubled mental history. And his illness is part of what divided the majority and Friedman in their view of his challenge to a 2013 guilty plea for first-degree sexual abuse.

Palmer, who was born in Jamaica and immigrated to the United States in 1994 at age 23, has experienced schizophrenia and hallucinations, Manzanet-Daniels wrote. For example, he believed that he could heal others through “exhaled gases,” or what he called “vapor powers,” she wrote.

Palmer was indicted for several sex crimes in 2008, including an alleged rape of his younger half-sister in three separate incidents, Friedman said. But prosecution stalled because of Palmer's repeated failures to take medication prescribed for his mental illness. Finally, in 2013, two examining psychiatrists determined him fit to stand trial, according to the documents.

At a subsequent plea allocution, Palmer was asked by DiMango whether he was a U.S. citizen, and he responded, “Yes, your Honor.” His defense counsel didn't correct the inaccurate statement, Manzanet-Daniels wrote in the Feb. 1 decision.

DiMango made no further inquiry and never issued a deportation warning. Nor did Gross at sentencing.

According to Manzanet-Daniels, the Court of Appeals in 2014 ruled in Peque that due process and fundamental fairness required trial judges to warn noncitizen defendants of the risk of deportation because it “frequently results from a noncitizen's guilty plea and constitutes a uniquely devastating deprivation of liberty.”

“A noncitizen defendant … can hardly make a voluntary and intelligent choice,” unless informed of the possibility, she added, again quoting Peque.

Moreover, “the warning mandated by Peque is required whether the defendant is a citizen or not,” she added, and, therefore, Palmer's statement in court that he was a citizen didn't absolve the trial court of its Peque obligations.

“The Court of Appeals recognized that in order to protect the rights of the large number of noncitizen defendants pleading guilty to felonies in the state, it was necessary to 'make all defendants aware that, if they are not United States citizens,' pleading guilty to a felony might lead to deportation,” Manzanet-Daniels continued, quoting Peque.

And “changes in immigration enforcement have increased the likelihood of deportation following a guilty plea,” she went on. “The Court [of Appeals] observed that at the time of the passage of amendments to the Immigration and Nationality Act in 1996, the number of deportations flowing from criminal convictions was 36,909, whereas in 2011, the United States deported 188,382 noncitizens following their criminal convictions … [and] since 1995, joint initiatives between state and federal authorities had enabled New York to transfer thousands of convicted noncitizens to ICE prior to the expiration of their prison terms.”

Friedman in dissent wrote that the majority's reliance on Peque was misplaced, and that the applicable precedent was People v. Brazil, in which the First Department in 2014 decided that the failure to give a Peque warning doesn't constitute grounds for setting aside a plea where “[the] defendant affirmatively misrepresented to the court that he was a United States citizen.”

“Brazil held that the failure to give a Peque warning in this scenario did not provide grounds for relief even if the misrepresentation [about citizenship] had been innocent, since, 'if that was [the defendant's] belief [i.e., that he was a citizen], he would not have had any reason to be concerned about deportation,' and thus would not have been influenced [in pleading guilty] by the warning had it been given,” Friedman wrote, quoting Brazil.

Moreover, “in none of the three cases under review in Peque did the defendant himself tell the court that he was a citizen, as the present defendant did here,” Friedman noted.

He also wrote, “An interesting question is raised by the majority's holding that, in spite of the uncontradicted expert finding of defendant's competence [at the time of his plea], an issue exists on this record as to whether the court should have relied on his claim to be a citizen. Specifically, if the record raises an issue as to the reliability of defendant's citizenship claim, would it not also raise an issue as to his ability to understand a Peque warning, had one been given?”

But Manzanet-Daniels countered that “Brazil is a memorandum decision from which little can be divined,” and wrote that “it cannot be seriously alleged here that defendant [Palmer] purposefully misrepresented his immigration status as had, apparently, the defendant in Brazil.”

“There is no indication that the defendant in Brazil suffered from mental illness or other defect which might call into question his ability to apprehend the effect of his statements,” she said, adding that Palmer's “clear indications of persistent symptoms of mental illness … warranted a more probing inquiry concerning his immigration status.”

Manzanet-Daniels, joined by Justices Barbara Kapnick, Cynthia Kern and Anil Singh, ruled that Palmer's appeal must be held “in abeyance” pending a prejudice hearing in the trial court. Palmer will be allowed to move to vacate his plea if he shows a reasonable probability that, had the court warned him about deportation, he would have not pleaded guilty and gone to trial.

Jennifer Watson and Rafael Curbelo, of the Bronx DA's Office, represented the state.