New York pleas
New York wrote the immigration consequence of one day into its sentencing law. Since 2019 the maximum sentence for a class A misdemeanor has been 364 days, one day short of the year that turns a theft, assault, forgery or obstruction conviction into an aggravated felony. The rest of the New York system, violations that are not crimes under state law but are convictions for immigration purposes, youthful offender adjudications that are not convictions at all, and a post-conviction motion with no deadline, has to be read the same way: what the disposition is under the federal definition, not what Albany calls it.
Current as of October 2026. We re-check this page regularly and after any rule change.
This page describes New York's sentencing structure, its disposition types, the advisal a judge gives before a plea, and the motion that undoes one. It does not say which New York offenses are crimes involving moral turpitude or aggravated felonies. Those are questions about the elements of each statute, decided under the categorical approach, and the answers change by subsection and by circuit. The federal grounds the New York disposition is measured against are on the crimes and removal page.
The sentencing ladder
| Class | Maximum sentence | Crime under state law? | Authority |
|---|---|---|---|
| Violation | 15 days | No | Penal Law 10.00(3); 70.15(4) |
| Class B misdemeanor | 3 months | Yes | Penal Law 10.00(4); 70.15(2) |
| Class A misdemeanor | 364 days | Yes | Penal Law 70.15(1)(a), as amended in 2019 |
| Class E felony | Up to 4 years | Yes | Penal Law 70.00(2) |
| Class D felony | Up to 7 years | Yes | Penal Law 70.00(2) |
| Class C felony | Up to 15 years | Yes | Penal Law 70.00(2) |
| Class B felony | Up to 25 years | Yes | Penal Law 70.00(2) |
Felony maximums are the indeterminate terms in Penal Law 70.00(2), which has separate rules for violent and drug felonies. Class A felonies are not listed here.
The immigration statute does not use these labels. It asks three questions of a sentence: what the maximum was, what was imposed, and whether the term was at least one year. The class decides the first. The plea decides the second and third.
The 364-day class A misdemeanor
Before 2019, a class A misdemeanor in New York carried a maximum of one year, and a sentence of "one year" on a misdemeanor theft or assault was, under INA 101(a)(48)(B), a term of imprisonment of at least one year, which is the threshold in the aggravated felony entries for theft, crimes of violence, forgery and obstruction. The Legislature amended Penal Law 70.15 in 2019 to set the maximum at 364 days, and, as amended, the section deems a sentence of one year imposed on a class A misdemeanor before the amendment to be a sentence of 364 days.
What 364 days does is exact. It is below the "at least one year" threshold in INA 101(a)(43)(F), (G), (R) and (S), so a class A misdemeanor cannot carry a sentence that meets it. It is below the one-year sentence in INA 236(c)(1)(C), so a single crime involving moral turpitude at the class A level does not, on that paragraph, make detention mandatory for an admitted person. And a 364-day maximum "does not exceed one year," which is the first prong of the petty offense exception in INA 212(a)(2)(A)(ii)(II); the second prong, a sentence of six months or less, still has to be met, and the exception still applies to one offense only.
What we cannot call settled
The single-CIMT deportability ground in INA 237(a)(2)(A)(i) asks whether a sentence of one year or longer "may be imposed." Whether a 364-day maximum takes a class A misdemeanor outside that ground, and how the deeming clause is applied to pre-2019 sentences, are questions we cannot tell you are settled. The statutory text points one way, but that is the text, not a holding. Ask us.
Violations, and why they still count
A violation is not a crime under New York law, and its maximum is 15 days. Disorderly conduct under Penal Law 240.20 is a violation, and it is the disposition most often offered to resolve a misdemeanor case. Three things need to be said carefully about it.
First, the immigration definition of a conviction in INA 101(a)(48)(A) does not ask whether the state calls the offense a crime. It asks whether a court entered a judgment of guilt, or accepted a plea and imposed a penalty. Under Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), the proceeding must be criminal in nature, with proof beyond a reasonable doubt, for its result to be a conviction. No reported Second Circuit decision squarely holds the point for a New York violation; we found none when we checked in October 2026, so the answer is the statutory test itself, applied to the record of the proceeding, and we treat a violation plea as a conviction risk.
Second, a conviction is only the first question. Whether a violation is a ground of removal depends on its elements, tested under the categorical approach, so ask us about the violation you are being offered. The petty offense exception, with its one-year maximum and six-month sentence prongs, is plainly available to a violation on the sentence side if the offense is a CIMT and is the only one.
Third, a plea to a violation can be an admission. The inadmissibility list in INA 212(a)(2)(A)(i) reaches a person who admits committing a crime involving moral turpitude or a controlled-substance violation, or admits its essential elements. What is said in the allocution matters on its own.
Dispositions that are not convictions, and one that depends
- Youthful offender, CPL Article 720. Under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000), a youthful offender adjudication is not a conviction, because it is the counterpart of a federal juvenile delinquency determination. For a defendant who is eligible, it is the single most valuable disposition in the New York system, and eligibility and the request are matters of state law for the criminal lawyer, raised before sentencing. The youthful offender page has more.
- Adjournment in contemplation of dismissal. We cannot give you one answer on whether a New York ACD is a conviction, because the answer turns on the general test in 101(a)(48)(A): was a plea of guilty or an admission of sufficient facts entered, and did the court order a penalty or restraint on liberty? An adjournment entered with no plea and no finding of guilt has nothing on the first half of that test. One entered after an allocution, or with a condition the court imposes, has to be checked against the second half. Ask what the court will require you to say and do, and bring the paperwork.
The advisal before the plea
CPL 220.50(7) requires the court, before accepting a plea to a felony, to advise a defendant who is not a citizen that the plea may result in removal. In People v. Peque, 22 N.Y.3d 168 (2013), the Court of Appeals held that the advisal is required for felony pleas as a matter of due process. Treat Peque as a felony-plea rule. We would want to read the official opinion against your case before telling you it reaches further. Ask us.
The court's advisal and your lawyer's advice are two different obligations. Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise a noncitizen client of the immigration consequences of a plea, felony or misdemeanor, and silence or misadvice is deficient performance. A judge's general warning that a plea "may result in removal" does not substitute for specific advice about what this plea does. The Padilla page covers what the advice has to contain and how to document that it was given.
What to ask for in a New York plea
The class of the offense, which sets the maximum. The subsection, which sets the elements the immigration judge will compare. A sentence stated in days, with 364 as the ceiling on a class A misdemeanor and six months as the ceiling if the petty offense exception is in play. Youthful offender treatment where the defendant is eligible. An allocution that says what the plea requires and nothing more. Each of these is an ordinary request in a New York courtroom, and the plea strategy pages explain the reasons behind each one.
Undoing a New York plea: CPL 440.10
A motion to vacate a judgment on constitutional grounds, including ineffective assistance of counsel under Padilla, is made under CPL 440.10(1)(h). The statute has no fixed filing deadline, which makes New York more forgiving than New Jersey and Florida; New Jersey's Rule 3:22 and Florida's Rule 3.850 each carry a limit. No deadline does not mean no urgency. The immigration case runs on its own calendar, a vacatur has to exist before it can be used in a motion to terminate or to reopen, and the evidence of what counsel said before the plea gets harder to assemble every year.
Two limits apply to every vacatur. Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the vacatur counts for immigration purposes only if it rests on a substantive or procedural defect in the original proceeding; a vacatur granted for immigration hardship or rehabilitation leaves the conviction in place, and the 440 order should say why the plea was defective. And under Chaidez v. United States, 568 U.S. 342 (2013), the Padilla ground is not available for a conviction that became final before March 31, 2010.
The firm's criminal defense practice litigates 440 motions in the New York courts where its attorneys are admitted, working from the same file as the immigration lawyers.
The firm's criminal defense practice in New York and New Jersey, including plea negotiation and post-conviction motions for noncitizen clients.
The full firm at usherlegal.com →
immigrationtrial.comUsing a New York vacatur in a pending removal case and after an order: motions to terminate, motions to reopen, continuances and stays.
Post-conviction relief in removal proceedings →
Read next: the 364-day sentence, youthful offender and juvenile cases, your right to advice before a plea, or vacating a plea.
Common questions
Is a New York violation a conviction for immigration purposes?
A violation is not a crime under New York law, and it carries a maximum of 15 days. But the immigration definition in INA 101(a)(48)(A) asks whether there was a judgment of guilt, or a plea plus a penalty, in a criminal proceeding. No reported Second Circuit decision squarely holds whether a New York violation adjudicated in a criminal proceeding is a conviction under that definition; we looked in October 2026 and found none. Under Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), the proceeding must be criminal in nature for its result to count. Treat a violation plea as a conviction risk until a lawyer reads the record. Whether the offense is then a ground of removal is a separate question about its elements, and disorderly conduct under PL 240.20 is a violation.
I was sentenced to one year on a class A misdemeanor before 2019. Is that an aggravated felony?
New York's 2019 amendment to Penal Law 70.15 reduced the class A misdemeanor maximum to 364 days and, as amended, deems a one-year sentence imposed on a class A misdemeanor before the amendment to be a sentence of 364 days. How the immigration courts apply that deeming clause to a sentence entered before 2019 is not something we can tell you is settled. Bring the certified record.
Does a youthful offender adjudication count?
No. Under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000), a youthful offender adjudication under CPL Article 720 is not a conviction, because it is analogous to a federal juvenile delinquency determination. Whether a defendant is eligible for youthful offender treatment is a question of New York law for the criminal lawyer, and the request has to be made before sentencing.
Is there a deadline to vacate a New York plea?
No fixed one. A motion to vacate a judgment on constitutional grounds, including ineffective assistance under Padilla v. Kentucky, is made under CPL 440.10(1)(h), which has no filing deadline. The vacatur counts for immigration purposes only if it rests on a defect in the original case, under Matter of Pickering, and under Chaidez v. United States the Padilla ground does not reach a conviction final before March 31, 2010.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.