Senate Bill S860

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

                                   860

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  DIAZ  --  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  the  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 two new paragraphs (f) and (g) to read as follows:
  (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
INFORMATION OR A MISDEMEANOR COMPLAINT, BEFORE ACCEPTING A PLEA OF GUIL-

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

                                                           LBD00684-01-3

S. 860                              2

TY TO ANY OFFENSE PUNISHABLE AS A CRIME UNDER STATE LAW, THE COURT SHALL
ADDRESS  THE  DEFENDANT  PERSONALLY  IN OPEN COURT, ON THE RECORD, UNDER
OATH, INFORMING HIM OR HER OF AND DETERMINING THAT HE OR SHE UNDERSTANDS
THE  FOLLOWING:  "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."
ABSENT A RECORD THAT THE COURT PROVIDED THE ADVISEMENT REQUIRED BY  THIS
PARAGRAPH,  THE  DEFENDANT  SHALL  BE  PRESUMED NOT TO HAVE RECEIVED THE
REQUIRED ADVISEMENT.
  (G) UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL  TIME
TO  CONSIDER  THE APPROPRIATENESS OF THE PLEA IN LIGHT OF THE ADVISEMENT
AS DESCRIBED IN PARAGRAPH (F) OF THIS SUBDIVISION.
  S 3. Section 180.10 of the criminal procedure law is amended by adding
a new subdivision 7 to read as follows:
  7.  BEFORE ACCEPTING A PLEA OF GUILTY TO ANY OFFENSE PUNISHABLE  AS  A
CRIME  UNDER STATE LAW, THE COURT SHALL ADDRESS THE DEFENDANT PERSONALLY
IN OPEN COURT, ON THE RECORD, UNDER OATH, INFORMING HIM OR  HER  OF  AND
DETERMINING THAT HE OR SHE UNDERSTANDS THE FOLLOWING:  "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 ADMIS-
SION TO THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT  TO  THE
LAWS OF THE UNITED STATES."  ABSENT A RECORD THAT THE COURT PROVIDED THE
ADVISEMENT REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL BE PRESUMED
NOT TO HAVE RECEIVED THE REQUIRED ADVISEMENT.
  UPON  REQUEST,  THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL TIME TO
CONSIDER THE APPROPRIATENESS OF THE PLEA IN LIGHT OF THE  ADVISEMENT  AS
DESCRIBED IN PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OF THIS
TITLE.
  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  THE  COURT
AND  PLACED  UPON  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."    ABSENT  A  RECORD  THAT  THE  COURT  PROVIDED THE ADVISEMENT
REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL  BE  PRESUMED  NOT  TO
HAVE  RECEIVED  THE REQUIRED ADVISEMENT. IF THE COURT FAILS TO SO ADVISE
THE DEFENDANT, AND HE OR SHE LATER AT ANY TIME SHOWS  THAT  HIS  OR  HER
PLEA  AND  CONVICTION  MAY  HAVE OR HAS HAD ONE OF THE ENUMERATED CONSE-
QUENCES, EVEN IF THE DEFENDANT HAS ALREADY BEEN DEPORTED FROM THE UNITED
STATES, THE COURT, ON THE DEFENDANT'S MOTION, SHALL VACATE THE  JUDGMENT
AND  PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY OR ADMISSION OR
SUFFICIENT FACTS, AND ENTER A PLEA OF NOT GUILTY.   ABSENT  AN  OFFICIAL
RECORD  IN  THE  COURT  FILE  THAT  THE COURT PROVIDED THE ADVISEMENT AS
PRESCRIBED IN THIS SECTION, THE DEFENDANT SHALL BE PRESUMED NOT TO  HAVE
RECEIVED  ADVISEMENT.  AN ADVISEMENT PREVIOUSLY OR SUBSEQUENTLY PROVIDED
TO THE DEFENDANT DURING ANOTHER PLEA  COLLOQUY  SHALL  NOT  SATISFY  THE
ADVISEMENT REQUIRED BY THIS SECTION, NOR SHALL IT BE USED TO PRESUME THE

S. 860                              3

DEFENDANT  UNDERSTOOD  THE  PLEA  OF  GUILTY, OR ADMISSION TO SUFFICIENT
FACTS HE OR SHE SEEKS TO VACATE AND WOULD HAVE THE CONSEQUENCE OF DEPOR-
TATION, REMOVAL, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL
OF  NATURALIZATION.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED AS
PREVENTING THE COURT, IN THE  SOUND  EXERCISE  OF  ITS  DISCRETION  FROM
SETTING ASIDE THE JUDGMENT OF CONVICTION AND PERMITTING THE DEFENDANT TO
WITHDRAW  HIS  OR  HER  PLEA. THE DEFENDANT SHALL NOT BE REQUIRED AT ANY
TIME DURING THE PROCEEDINGS OR AT THE TIME OF THE PLEA  TO  DISCLOSE  TO
THE COURT HIS OR HER LEGAL STATUS IN THE UNITED STATES.
  S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.