Immigration Consequences of Being Sentenced to a Conditional Discharge in New York

What is a Conditional Discharge?

Under New York Penal Law section 65.05, a conditional discharge is a sentence that a judge can impose if they believe that neither a sentence of imprisonment nor one of periodic imprisonment or probation supervision is appropriate based on the nature and circumstances of the offense and the history, character, and condition of the defendant. Instead, the court may order the offender to participate in a treatment or substance abuse program, obtain and maintain employment, support dependents and meet family obligations, perform community service, etc., provided that they receive no new arrests. 

The judge may only sentence someone to a conditional discharge if it is authorized under New York law. Generally, a conditional discharge can be a sentence on:

• Violations (unless a fine is an authorized sentence on VTL violations);
• Class A Misdemeanors;
• Class B Misdemeanors;
• Class E Non-Violent Felonies;
• Class E Violent Felonies;
• Class D Non-Violent Felonies; or
• Class D Violent Felonies.

Typically, on misdemeanor charges and violations, the length of the conditional discharge is 1 year. For felonies, the duration of the conditional discharge is 3 years.

What are the Immigration Consequences of Being Sentenced to a Conditional Discharge in New York?

Under New York law, a person who has been sentenced to a conditional discharge has already pled or been found guilty. Being found guilty or admitting to guilt may constitute a “conviction” under the immigration laws, even if a person does not serve one day in jail, or even if the charges are subsequently dismissed. 

The Immigration and Nationality Act (INA) defines “conviction” as follows:

(A) The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

This means that a person who has been sentenced to a conditional discharge in New York can possibly be deported. Under the Immigration and Nationality Act (INA), certain criminal offenses will make you deportable. These include, but are not limited to:

• Crimes of moral turpitude,
• Controlled substances (drug) offenses,
• Aggravated felonies,
• Firearm offenses, and
• Domestic violence crimes.

Thus, if you have been sentenced a conditional discharge for any of these types of crimes, then you can be deported by the Department of Homeland Security (DHS).

If you have any questions about receiving a conditional discharge sentence in New York, contact our office today to set up a consultation with one of our attorneys!