S T A T E O F N E W Y O R K
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5398
2009-2010 Regular Sessions
I N A S S E M B L Y
February 13, 2009
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Introduced by M. of A. P. RIVERA -- 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 defense attorney 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 (e) to read as follows:
(E) 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.
LBD06649-01-9
A. 5398 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 HIS OR HER ATTORNEY:
"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 NATURALIZA-
TION PURSUANT TO THE LAWS OF THE UNITED STATES."
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, AND 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 HIS OR HER
ATTORNEY: "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."
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, AND 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 HIS OR HER
ATTORNEY: "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."
S 5. Section 220.60 of the criminal procedure law is amended by adding
two new subdivisions 5 and 6 to read as follows:
5. IF HIS OR HER ATTORNEY FAILS TO ADVISE THE DEFENDANT AS REQUIRED BY
PARAGRAPH (E) 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, AND THE DEFENDANT SHOWS THAT ACCEPT-
ANCE 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 INSTRU-
MENT, AS IT EXISTED AT THE TIME OF THE PLEA OF GUILTY, IS RESTORED.
6. A DEFENSE ATTORNEY'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 6. Paragraph (h) of subdivision 1 of section 440.10 of the criminal
procedure law is amended and a new paragraph (i) is added to read as
follows:
(h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States[.];
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(I) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE DEFENSE
ATTORNEY PRIOR THERETO FAILED TO ADVISE THE DEFENDANT AS REQUIRED BY
PARAGRAPH (E) 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 7. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 8 to read as follows:
8. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
(I) 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 MUST
ORDER A NEW TRIAL.
S 8. 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 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.