NY State Senate Bill 2017-S461

Senate Bill S461

2017-2018 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes
Jan 04, 2017	referred to codes

2017-S461 (ACTIVE) - Details

See Assembly Version of this Bill:: A1798
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§170.10, 180.10, 210.15, 220.50, 220.60 & 440.10, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S2254
2011-2012: S1018, A9441
2013-2014: S116, A7283
2015-2016: S1300, A2530
2019-2020: A2189
2021-2022: A3438
2023-2024: A1863

2017-S461 (ACTIVE) - 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.

2017-S461 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S461

 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 :

2015-2016 -S.1300A
2013-2014 -S.116
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.

2017-S461 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    461
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 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.
   § 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.
                                                            LBD00069-02-7

 S. 461                              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; 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-

 S. 461                              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.]
   § 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.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
 440.10 of the criminal procedure law, as amended by chapter 368  of  the
 laws  of  2015,  is  amended and a new paragraph (j) is added to read as
 follows:
   (ii) official documentation of the defendant's status as a  victim  of
 trafficking,  compelling  prostitution  or trafficking in persons at the
 time of the offense from a federal, state  or  local  government  agency
 shall  create  a  presumption  that the defendant's participation in the
 offense was a result of having been a victim of sex trafficking, compel-
 ling prostitution 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  EIGHT
 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.
   § 8. Section 440.10 of the criminal procedure law is amended by adding
 a new subdivision 9 to read as follows:

 S. 461                              4

   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.
   § 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.

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