senate Bill S116

Requires the court to advise aliens of deportation consequences of guilty plea; allows guilty plea withdrawal

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 09 / Jan / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Requires the court to advise a defendant that if he or she is an alien and he or she is convicted of a crime, whether by plea or trial, such conviction may result in his or her deportation; allows a withdrawal of a plea of guilty by an alien if such alien is threatened with deportation and such alien is not so advised of such threat of deportation.

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Bill Details

See Assembly Version of this Bill:
A7283
Versions:
S116
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Amd ยงยง170.10, 180.10, 210.15, 220.50, 220.60 & 440.10, CP L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1018, A9441, S1018
2009-2010: S2254, A2514, S2254
2007-2008: A1192A

Sponsor Memo

BILL NUMBER:S116

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to requiring an
advisement by a court
regarding the possible consequences to an alien of the acceptance of
a plea of guilty to a crime
under state law

PURPOSE:
The purpose of this bill is to require courts to advise aliens of
deportation consequences upon the acceptance of a guilty plea and to
allow aliens to withdraw a guilty plea should such communication not
take place.

SUMMARY OF PROVISIONS:
This legislation amends sections 170.10, 180.10, 210.15, 220.50,
220.60 and 440.10 of the criminal procedure law to provide that prior
to acceptance of a guilty plea by an alien to any felony or
misdemeanor count, the court must advise such person of the grounds
for deportation or denial of naturalization for such guilty plea.
This communication must be recorded in the Court's record and the
defendants would not be required to disclose his or her citizenship
or immigration status at the time of entry of a plea. If the court
fails to so advise the defendant, he or she will have the right to
withdraw the guilty plea.

JUSTIFICATION:
Many individuals who are not citizens and are accused of a crime under
State law are not aware of the fact that acceptance of a guilty plea
could constitute grounds for deportation or denial of naturalization.
Allowing guilty pleas taken in ignorance of major consequences
constitutes a denial of elementary concepts of fairness and may also
constitute a denial of due process.

Immigrant defendants need to be notified during the plea process for
felonies and misdemeanors that pleading guilty may subject them to
automatic deportation or denial of naturalization. Under this
legislation, legal residents and immigrants would now have the
opportunity to consider the harsh immigration consequences of
pleading guilty to a minor offense, even if doing so would have
provided no sentence or a limited fine.

Several other states have similar statutes or court rules requiring
notification prior to accepting a defendant's plea including:
Massachusetts, Connecticut, Texas, Florida, California and the
District of Columbia; most of these states allow the plea to be
vacated if the prescribed warning is not given. It is time for New
York to follow the lead of its neighboring states, particularly given
the state's large immigrant population.

Defendants should, at the very least, be made aware that pleading
guilty to even a minor offense could result in their deportation or
denial of naturalization, and should be fully aware of such
consequences before making their decision.


LEGISLATIVE HISTORY:
2011-12: S.1018
2009-10 Referred to Codes (S.2254)
2005 Referred to Codes (S.2355)
2006 Referred to Codes (S.2355)

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become law, provided, however, that
the amendments to subdivision 7 of section 220.50 of the criminal
procedure law made by section five of this act shall not affect the
repeal of such subdivision and shall be deemed repealed therewith.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   116

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to requiring  an
  advisement  by a court regarding the possible consequences to an alien
  of the acceptance of a plea of guilty to a crime under state law

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Legislative  finding and declaration.   The legislature
finds and declares that in many instances involving an individual who is
not a citizen of the United States charged with an offense punishable as
a crime under state law, a plea of guilty is entered without the defend-
ant knowing that a conviction of such offense is  grounds  for  deporta-
tion, exclusion from admission to the United States, or denial of natur-
alization  pursuant  to the laws of the United States.  Therefore, it is
the intent of the legislature by enacting this act to  promote  fairness
to  such  accused individuals by requiring in such cases that acceptance
of a guilty plea be preceded by an appropriate warning  of  the  special
consequences for such a defendant which may result from the plea.  It is
also  the  intent  of the legislature that the court in such cases shall
grant the defendant a reasonable amount of time to  negotiate  with  the
prosecutor  in  the  event  the defendant or the defendant's counsel was
unaware of the possibility of deportation, exclusion from  admission  to
the   United  States,  or  denial  of  naturalization  as  a  result  of
conviction. It is further the intent of the legislature that at the time
of the plea no defendant shall be required to disclose his or her  legal
status to the court.
  S 2.  Subdivision 4 of section 170.10 of the criminal procedure law is
amended by adding a new paragraph (f) to read as follows:
  (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
INFORMATION OR A MISDEMEANOR COMPLAINT, PRIOR TO ACCEPTANCE OF A PLEA OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00349-01-3

S. 116                              2

GUILTY  TO  ANY CRIME UNDER STATE LAW, THE DEFENDANT, IN ADDITION TO ANY
OTHER WARNING REQUIRED BY LAW, SHALL BE ENTITLED  TO  SUBSTANTIALLY  THE
FOLLOWING  ADVISEMENT  TO  BE  ORALLY  ADMINISTERED BY THE COURT, ON THE
RECORD  IN  A  COURT  OF RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED
STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF
GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU HAVE  BEEN  CHARGED  MAY
RESULT  IN  YOUR  DEPORTATION,  EXCLUSION  FROM  ADMISSION TO THE UNITED
STATES OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS  OF  THE  UNITED
STATES."  THE DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A
PLEA,  TO  DISCLOSE  TO  THE COURT HIS OR HER CITIZENSHIP OR IMMIGRATION
STATUS.  ABSENT THE PRESENCE OF THE ADVISEMENT REQUIRED  BY  THIS  PARA-
GRAPH  IN THE RECORD OF THE PROCEEDING IN A COURT OF RECORD, IT SHALL BE
PRESUMED THAT THE ADVISEMENT WAS NOT ADMINISTERED.
  S 3. Section 180.10 of the criminal procedure law is amended by adding
a new subdivision 7 to read as follows:
  7. UPON ARRAIGNMENT ON A FELONY COMPLAINT, PRIOR TO  ACCEPTANCE  OF  A
PLEA  OF  GUILTY  TO  ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN
ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED  TO  SUBSTAN-
TIALLY  THE  FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT
ON THE RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES,  YOU  ARE
HEREBY  ADVISED  THAT  ACCEPTANCE  BY  THE  COURT OF A PLEA OF GUILTY OR
CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED  MAY  RESULT  IN
YOUR  DEPORTATION,  EXCLUSION  FROM  ADMISSION  TO  THE UNITED STATES OR
DENIAL OF NATURALIZATION PURSUANT TO THE LAWS  OF  THE  UNITED  STATES."
THE  DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A PLEA, TO
DISCLOSE TO THE COURT HIS OR  HER  CITIZENSHIP  OR  IMMIGRATION  STATUS.
ABSENT  THE  PRESENCE  OF THE ADVISEMENT REQUIRED BY THIS SUBDIVISION IN
THE RECORD OF THE PROCEEDING, IT SHALL BE PRESUMED THAT  THE  ADVISEMENT
WAS NOT ADMINISTERED.
  S 4. Section 210.15 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4. UPON ARRAIGNMENT ON AN INDICTMENT, PRIOR TO ACCEPTANCE OF A PLEA OF
GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN ADDITION TO
ANY  OTHER  WARNING  REQUIRED  BY  LAW, BE ENTITLED TO SUBSTANTIALLY THE
FOLLOWING ADVISEMENT TO BE ORALLY  ADMINISTERED  BY  THE  COURT  ON  THE
RECORD:  "IF  YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY
ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY  OR  CONVICTION
OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTA-
TION,  EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL OF NATUR-
ALIZATION PURSUANT TO THE LAWS OF THE UNITED  STATES."    THE  DEFENDANT
SHALL  NOT  BE  REQUIRED, AT THE TIME OF ENTRY OF A PLEA, TO DISCLOSE TO
THE COURT HIS OR HER CITIZENSHIP OR  IMMIGRATION  STATUS.    ABSENT  THE
PRESENCE OF THE ADVISEMENT REQUIRED BY THIS SUBDIVISION IN THE RECORD OF
THE  PROCEEDING, IT SHALL BE PRESUMED THAT THE ADVISEMENT WAS NOT ADMIN-
ISTERED.
  S 5. Subdivision 7 of section 220.50 of the criminal procedure law, as
amended by chapter 738 of the laws  of  2004,  is  amended  to  read  as
follows:
  7.  Prior  to  accepting  a  defendant's  plea of guilty to a count or
counts of an indictment or a superior court information charging a felo-
ny OR MISDEMEANOR offense, the court must advise the  defendant  on  the
record, that if the defendant is not a citizen of the United States, the
defendant's plea of guilty and the court's acceptance thereof may result
in  the  defendant's deportation, exclusion from admission to the United
States or denial of naturalization pursuant to the laws  of  the  United
States.  Where  the plea of guilty is to a count or counts of an indict-

S. 116                              3

ment charging a felony OR MISDEMEANOR offense other than a violent felo-
ny offense as defined in section 70.02 of the penal law or an A-I felony
offense other than an A-I felony as defined in article two hundred twen-
ty  of the penal law, the court must also, prior to accepting such plea,
advise the defendant that, if the defendant is  not  a  citizen  of  the
United States and is or becomes the subject of a final order of deporta-
tion  issued  by  [the]  United  States  Immigration and [Naturalization
Service] CUSTOMS ENFORCEMENT, the defendant may be paroled to the custo-
dy of [the] Immigration and [Naturalization Service] CUSTOMS ENFORCEMENT
for deportation purposes at any time subsequent to the  commencement  of
any  indeterminate or determinate prison sentence imposed as a result of
the defendant's plea. [The failure to advise the defendant  pursuant  to
this  subdivision  shall  not be deemed to affect the voluntariness of a
plea of guilty or the validity of a conviction, nor shall  it  afford  a
defendant any rights in a subsequent proceeding relating to such defend-
ant's deportation, exclusion or denial of naturalization.]
  S 6. Section 220.60 of the criminal procedure law is amended by adding
two new subdivisions 5 and 6 to read as follows:
  5.  IF THE COURT FAILS TO ADVISE THE DEFENDANT AND THE DEFENDANT SHOWS
THAT ACCEPTANCE OF THE PLEA OF GUILTY OR  CONVICTION  OF  THE  CRIME  OR
CRIMES  TO  WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES FOR
THE DEFENDANT OF DEPORTATION, EXCLUSION FROM  ADMISSION  TO  THE  UNITED
STATES  OR  DENIAL  OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED
STATES, THE COURT, UPON REQUEST  OF  THE  DEFENDANT,  SHALL  PERMIT  THE
DEFENDANT  TO WITHDRAW THE PLEA OF GUILTY AND ENTER A PLEA OF NOT GUILTY
AT ANY TIME BEFORE THE IMPOSITION OF SENTENCE, AND  IN  SUCH  EVENT  THE
ENTIRE  ACCUSATORY  INSTRUMENT, AS IT EXISTED AT THE TIME OF THE PLEA OF
GUILTY, SHALL BE RESTORED.
  6. A COURT'S FAILURE  TO  PROVIDE  THE  ADVISEMENT  REQUIRED  BY  THIS
SECTION  SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF THE
PLEA OR CONSTITUTE GROUNDS FOR FINDING A  PRIOR  CONVICTION  INVALID  IF
SUCH  FAILURE  OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION.
NOTHING IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT  IN
THE  SOUND  EXERCISE  OF  ITS  DISCRETION,  FROM  VACATING A JUDGMENT OR
PERMITTING A DEFENDANT TO WITHDRAW A PLEA ACCORDING TO LAW.
  S 7. Paragraph (i) of subdivision 1 of section 440.10 of the  criminal
procedure  law,  as added by chapter 332 of the laws of 2010, is amended
and a new paragraph (j) is added to read as follows:
  (i) The judgment is a conviction where the arresting charge was  under
section  240.37 (loitering for the purpose of engaging in a prostitution
offense, provided that the defendant was not alleged to be loitering for
the purpose of patronizing a prostitute or  promoting  prostitution)  or
230.00  (prostitution)  of  the  penal  law, and the defendant's partic-
ipation in the offense was a result of having been a victim of sex traf-
ficking under section 230.34 of the penal law or trafficking in  persons
under  the Trafficking Victims Protection Act (United States Code, title
22, chapter 78); provided that
  (i) a motion under this paragraph shall be made  with  due  diligence,
after the defendant has ceased to be a victim of such trafficking or has
sought  services  for victims of such trafficking, subject to reasonable
concerns for the safety of the defendant, family members of the  defend-
ant, or other victims of such trafficking that may be jeopardized by the
bringing  of  such  motion,  or  for  other  reasons consistent with the
purpose of this paragraph; and
  (ii) official documentation of the defendant's status as a  victim  of
sex  trafficking  or  trafficking  in persons at the time of the offense

S. 116                              4

from a federal, state or local government agency shall create a presump-
tion that the defendant's participation in the offense was a  result  of
having  been  a victim of sex trafficking or trafficking in persons, but
shall not be required for granting a motion under this paragraph[.];
  (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
THERETO  FAILED  TO ADVISE THE DEFENDANT AS REQUIRED BY PARAGRAPH (F) OF
SUBDIVISION FOUR OF SECTION 170.10 OR AS REQUIRED BY  SUBDIVISION  SEVEN
OF  SECTION  180.10 OR AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15
OF THIS CHAPTER, PROVIDED THAT THE DEFENDANT SHOWS THAT THE ENTRY OF AND
ACCEPTANCE OF THE PLEA OF GUILTY  MAY  HAVE  THE  CONSEQUENCES  FOR  THE
DEFENDANT OF DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES,
OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.
  S 8. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 9 to read as follows:
  9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
(J) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE
OF  THE  PLEA  OF  GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF
DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL  OF
NATURALIZATION  PURSUANT  TO  THE  LAWS  OF THE UNITED STATES, THE COURT
SHALL ORDER A NEW TRIAL.
  S 9. The office of court administration shall develop a bill of rights
and code of ethics for attorneys on how to advise aliens of the deporta-
tion consequences of a plea of guilty to a crime under state  law.  Such
office  is authorized and directed to promulgate any rule, regulation or
form necessary for the implementation of this section  within  180  days
after the date on which this act becomes a law.
  S  10.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it  shall  have  become  a  law,  provided,
however,  that  the amendments to subdivision 7 of section 220.50 of the
criminal procedure law made by section five of this act shall not affect
the repeal of such subdivision and shall be deemed repealed therewith.

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