Assembly Bill A4360

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4360
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2021
                                ___________
 
 Introduced  by  M.  of  A.  DE LA ROSA  -- read once and referred 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.
   § 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-
 TY TO ANY OFFENSE PUNISHABLE AS A CRIME UNDER STATE LAW, THE COURT SHALL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03647-01-1

 A. 4360                             2
 
 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.
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.    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.
   § 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
 DEFENDANT UNDERSTOOD THE PLEA OF  GUILTY,  OR  ADMISSION  TO  SUFFICIENT

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 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.
   § 5. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.