(concurring in People v Peque and People v Thomas, and dissenting in People v Diaz).
I
In my view, the majority (for want of a better word), seeking a middle ground between the diametrically opposed positions of *204the People and the defendants in these cases, creates no new law, and simply leaves us where we were before. One majority, comprised of Chief Judge Lippman, and Judges Graffeo, Read, Rivera and Abdus-Salaam, concludes that the risk of deportation “must be mentioned by the trial court to a defendant as a matter of fundamental fairness” (op of Abdus-Salaam, J., at 193). Then, a different majority, Judges Graffeo, Read, Smith and Abdus-Salaam, which refers to itself as the “remedial majority” (id. at 198), takes away with one hand what had been given with the other. A court’s failure to warn of the possibility of deportation does not automatically invalidate the plea (unlike the failure to warn a defendant of direct consequences of his plea, such as postrelease supervision). Rather, according to the remedial majority, a defendant’s recourse is merely “a hearing to provide the defendant with an opportunity to demonstrate prejudice” (id. at 200). But that remedy was already available to defendants under CPL 440.10. In short, the remedial majority’s analysis takes us nowhere new.
I would take a more straightforward approach. Deportation is a collateral consequence of a guilty plea, as the remedial majority concedes. We can infer from this that a defendant has no constitutional right to be informed by a state trial court judge of the possibility that the federal government may deport him or her.* However, under Padilla v Kentucky (559 US 356 [2010]), the Sixth Amendment requires a defendant’s counsel to “inform her client whether his plea carries a risk of deportation” (559 US at 374). “Whether he is entitled to relief depends on whether he has been prejudiced” (id. at 360), and, in showing prejudice, defendant must demonstrate that, in addition to his counsel’s failure to give the required advice, he was not informed by the trial court of the risk of deportation. If defendant can show that neither his counsel nor the trial court informed him of the possibility of deportation, and that he would not have pleaded guilty *205had he been so informed, he will prevail at his postjudgment proceeding.
In short, I would reach a very similar conclusion to the remedial majority’s, and, like the remedial majority, I would create no new law, but I would follow a far more direct path, based strictly on Padilla. The remedial majority’s analysis gives defendants no practical benefit that Padilla does not already give them.
II
Another, equally fundamental weakness affects the “majority” opinion. The majority comprised of Chief Judge Lippman, and Judges Graffeo, Read, Rivera and Abdus-Salaam does not agree on a rationale for its due process holding. Although Judge Abdus-Salaam does not say so expressly, no precedential analysis emerges from her opinion.
Judges Graffeo, Read and Abdus-Salaam “reaffirm! ] the central holding of [People v] Ford [(86 NY2d 397 [1995])] regarding . . . the distinction between direct and collateral consequences of a guilty plea” (op of Abdus-Salaam, J., at 176; see id. at 196). The same Judges also reaffirm Ford’s holding that deportation is a collateral consequence of a guilty plea, adding only the qualifier “technically” before “collateral” (id. at 191 n 5, 191-192, 199), but never retreating from the basic premise.
So far, I have no quarrel; Judge Smith and I agree with Judges Graffeo, Read and Abdus-Salaam that deportation is a collateral consequence of a guilty plea. However, the plurality consisting of Judges Graffeo, Read and Abdus-Salaam (see op of Abdus-Salaam, J., at 191-192) then attempts to treat deportation as a sui generis consequence that is at once collateral and uniquely significant. In doing so, the plurality fails to do justice to the severity of collateral consequences such as SORA registration and SOMTA confinement. A person who has been civilly confined, possibly for the rest of his life, under Mental Hygiene Law article 10, would be surprised to learn that three members of our Court believe that he has not been “ deprive [d] ... of an exceptional degree of physical liberty” (op of Abdus-Salaam, J., at 192). In my view, the plurality’s position contradicts our holdings in People v Gravino (14 NY3d 546 [2010] [SORA registration is a significant, but a collateral, consequence of a conviction]) and People v Harnett (16 NY3d 200 [2011] [same with respect to SOMTA commitment]).
*206III
I agree that the Appellate Division orders in People v Peque and People v Thomas should be affirmed. However, with respect to People v Diaz, I do not agree that “the trial court clearly failed to tell defendant that he might be deported if he pleaded guilty” (op of Abdus-Salaam, J., at 200), the view taken by Chief Judge Lippman, and Judges Graffeo, Read, Rivera and Abdus-Salaam. Supreme Court told Diaz, “if you’re not here legally or if you have any immigration issues these felony pleas could adversely affect you” (emphasis added), and the court elicited an acknowledgment that Diaz understood this. Although Diaz was a legal permanent resident of the United States, he was not a citizen. As such, he was not able to vote in United States elections, or remain outside the United States for lengthy periods of time, without running the risk of his permanent residency being deemed abandoned. In the circumstances, I believe that the reference to “immigration issues” was sufficient to make Diaz aware that the trial court’s warning applied to him. It might have been preferable for Supreme Court to advise Diaz that, even if he was in the United States legally, a guilty plea might result in his deportation if he was not a United States citizen. But I cannot accept that, as a matter of law, Supreme Court’s words implied that a guilty plea would not entail adverse immigration consequences for Diaz.
IV
Nor should Diaz be permitted a second bite of the apple. Supreme Court denied Diaz’s CPL 440.10 motion, agreeing with Diaz that his defense attorney had been ineffective, but holding that Diaz had not met his burden of showing prejudice, i.e. showing that he would not have pleaded guilty if warned by counsel of the risk of deportation. The Appellate Division denied Diaz leave to appeal Supreme Court’s order, and consequently the proceeding did not reach us. Now the remedial majority remits the direct appeal to the trial court to, once again, “allow [defendant] to move to vacate his plea and develop a record relevant to the issue of prejudice” (op of Abdus-Salaam, J, at 200). But Diaz has already had his 440.10 proceeding (see id. at 179), and failed to establish any prejudice. It is therefore difficult to see what proceeding the remedial majority imagines should now occur.
*207V
For these reasons, I cannot join Judge Abdus-Salaam’s opinion. I would affirm in all three appeals (but see People v Hernandez, 22 NY3d 972, 977 [2013, Pigott, J., dissenting and voting to vacate defendant’s plea following a CPL 440.10 proceeding] [decided today]).
Such a warning is required by a statute, CPL 220.50 (7), which courts should, of course, follow, even if failure to do so is not reversible error. The statute was added
“as a component of budget legislation designed to reduce prison population by facilitating deportation of convicted felons who are not citizens of the United States. The admonition the court is required to impart ... is aimed at diluting the effectiveness of arguments made by aliens at deportation hearings that they would not have pleaded guilty had they known the conviction would result in loss of the privilege of remaining in this country” (Peter Preiser, McKinney’s Cons Laws of NY, Book 11 A, CPL 220.50 at 167).