S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3438
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2021
                                ___________
 
 Introduced by M. of A. KIM -- read once and referred 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.
   § 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
 GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT, IN ADDITION  TO  ANY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06009-01-1

 A. 3438                             2
 
 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; AND
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.  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.
   § 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.
   § 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-
 ment charging a felony OR MISDEMEANOR offense other than a violent felo-

 A. 3438                             3
 
 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.]
   § 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 THE 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.
   § 7. Paragraphs (j) and (k) of subdivision 1 of section 440.10 of  the
 criminal  procedure  law,  paragraph  (j)  as amended by chapter 131 and
 paragraph (k) as added by chapter 132 of the laws of 2019,  are  amended
 and a new paragraph (1) is added to read as follows:
   (j)  The judgment is a conviction for a class A or unclassified misde-
 meanor entered prior to the effective date of this paragraph and  satis-
 fies  the ground prescribed in paragraph (h) of this subdivision.  There
 shall be a rebuttable presumption that a conviction by plea to  such  an
 offense  was  not  knowing,  voluntary and intelligent, based on ongoing
 collateral  consequences,  including  potential  or  actual  immigration
 consequences,  and  there  shall  be  a  rebuttable  presumption  that a
 conviction by verdict constitutes cruel  and  unusual  punishment  under
 section  five  of  article  one  of the state constitution based on such
 consequences; [or]
   (k) The judgment occurred prior to the effective date  of  this  para-
 graph  and is a conviction for an offense as defined in subparagraph (i)
 or (ii) of paragraph (k) of subdivision three of section 160.50 of  this
 part,  in  which  case the court shall presume that a conviction by plea
 for the aforementioned offenses was not knowing, voluntary and  intelli-
 gent if it has severe or ongoing consequences, including but not limited
 to  potential or actual immigration consequences, and shall presume that
 a conviction by verdict  for  the  aforementioned  offenses  constitutes

 A. 3438                             4
 
 cruel  and  unusual  punishment under section five of article one of the
 state constitution, based on those consequences. The  people  may  rebut
 these presumptions[.]; OR
   (1) 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  EIGHT
 OF  SECTION  180.10 OR AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15
 OF THIS PART, 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.
   § 8. Section 440.10 of the criminal procedure law is amended by adding
 a new subdivision 10 to read as follows:
   10. UPON GRANTING THE MOTION UPON THE GROUND, AS SET  FORTH  IN  PARA-
 GRAPH  (L)  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.
   § 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.
   § 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.