S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3057
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 2, 2023
                                ___________
 
 Introduced  by  M. of A. CRUZ -- read once and referred to the Committee
   on Codes
 
 AN ACT to amend the criminal procedure law, in relation to requiring the
   court, prior to accepting a plea, to advise the defendant of the  risk
   of deportation if he or she is not a citizen

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. 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. (A) 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  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 indictment charg-
 ing a felony offense other than a violent felony 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 twenty 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 deportation issued by the United
 States  Immigration  and  Naturalization  Service,  the defendant may be
 paroled to the custody of the Immigration and Naturalization Service 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07452-01-3
              

 A. 3057                             2

 any rights in a  subsequent  proceeding  relating  to  such  defendant's
 deportation,  exclusion  or  denial  of naturalization.] THE DEFENDANT'S
 ENTRY OF A PLEA OF GUILTY TO ANY ACCUSATORY INSTRUMENT IN  ANY  CRIMINAL
 ACTION,  THE  COURT  SHALL ORALLY GIVE EVERY DEFENDANT ON THE RECORD THE
 FOLLOWING NOTIFICATION: "IF YOU ARE NOT A CITIZEN OF THE UNITED  STATES,
 YOU MAY BECOME DEPORTABLE, INELIGIBLE FOR NATURALIZATION OR INADMISSIBLE
 TO THE UNITED STATES BASED ON A CONVICTION BY PLEA OR VERDICT."
   (I)  THE  COURT  SHALL  NOTIFY  EVERY DEFENDANT IN A LANGUAGE THAT THE
 DEFENDANT UNDERSTANDS WITHOUT INQUIRING ABOUT THE  DEFENDANT'S  CITIZEN-
 SHIP OR IMMIGRATION STATUS ON THE RECORD.
   (II)  ONLY  THE COURT SHALL NOTIFY DEFENDANTS ABOUT THE POSSIBILITY OF
 DEPORTABILITY, INELIGIBILITY FOR NATURALIZATION, OR  INADMISSIBILITY  TO
 THE  UNITED STATES PURSUANT TO THIS PARAGRAPH.  THE COURT AND THE PEOPLE
 SHALL NOT MAKE ANY  OTHER  STATEMENTS  ABOUT  IMMIGRATION  CONSEQUENCES,
 INCLUDING  BUT  NOT  LIMITED  TO STATEMENTS REGARDING LIKELY IMMIGRATION
 CONSEQUENCES, CONDITION DEFENDANT'S  GUILTY  PLEA  REGARDLESS  OF  IMMI-
 GRATION CONSEQUENCES, OR REQUIRE WAIVER OF ANY ISSUE OR CLAIM RELATED TO
 IMMIGRATION CONSEQUENCES.
   (III) UPON REQUEST OF THE DEFENDANT, THE COURT SHALL ALLOW THE DEFEND-
 ANT ADDITIONAL TIME TO SECURE COUNSEL OR CONSIDER THE APPROPRIATENESS OF
 THE  PLEA FOLLOWING THE NOTIFICATION DESCRIBED IN THIS SUBDIVISION, WITH
 SUCH PLEA OFFER REMAINING OPEN.
   (IV) ADVICE REGARDING IMMIGRATION CONSEQUENCES GIVEN BY DEFENSE  COUN-
 SEL DOES NOT ABSOLVE THE COURT OF ITS INDEPENDENT OBLIGATION TO GIVE THE
 NOTICE MANDATED IN THIS SUBDIVISION.
   (V)  THE  NOTIFICATION  DOES NOT ABSOLVE DEFENSE COUNSEL OF HIS OR HER
 INDEPENDENT OBLIGATION TO EXPLAIN THE IMMIGRATION  CONSEQUENCES  TO  THE
 DEFENDANT.
   (VI)  NOTHING IN THIS SUBDIVISION SHALL PROHIBIT A COURT OR THE PEOPLE
 FROM CONSIDERING THE IMMIGRATION STATUS OF DEFENDANT IN ACCEPTING  ENTRY
 OF  A  PLEA, IMPOSING A LOWER SENTENCE ACCORDING TO LAW, CONSENTING TO A
 LESSER INCLUDED OFFENSE, OR FILING AN ADDITIONAL ACCUSATORY INSTRUMENT.
   (B) AT THE TIME OF  DEFENDANT'S  ARRAIGNMENT,  THE  COURT  SHALL  ALSO
 COMPLY  WITH  PARAGRAPH (A) OF THIS SUBDIVISION, THOUGH FAILURE TO DO SO
 DOES NOT REQUIRE VACATUR PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION.
   (C) WHEN A CONVICTION OR PLEA  HAS  POTENTIAL  OR  ACTUAL  IMMIGRATION
 CONSEQUENCES  FOR  A  DEFENDANT,  THE COURT'S FAILURE TO STRICTLY COMPLY
 WITH PARAGRAPH (A) OF THIS SUBDIVISION, ON OR AFTER THE  EFFECTIVE  DATE
 OF  THIS  SUBDIVISION, SHALL RENDER THE PLEA UNKNOWING, INVOLUNTARY, AND
 UNINTELLIGENT, REQUIRING VACATUR.  THE COURT'S FAILURE TO HAVE  SUBSTAN-
 TIALLY  COMPLIED WITH PARAGRAPH (A) OF THIS SUBDIVISION IN ANY NON-FINAL
 CRIMINAL PROSECUTION FROM NOVEMBER NINETEENTH, TWO THOUSAND THIRTEEN  TO
 THE  EFFECTIVE DATE OF THIS SUBDIVISION SHALL RENDER THE PLEA UNKNOWING,
 INVOLUNTARY, AND UNINTELLIGENT, REQUIRING  VACATUR.  AN  APPLICATION  TO
 VACATE  THE  JUDGMENT OR WITHDRAW THE DEFENDANT'S PLEA OF GUILTY ON THIS
 BASIS CAN BE RAISED EITHER ON DIRECT APPEAL OR AT ANY TIME PURSUANT TO A
 MOTION UNDER PARAGRAPH (H) OF SUBDIVISION ONE OF SECTION 440.10 OF  THIS
 CHAPTER.
   (I)  THE  TERM "POTENTIAL OR ACTUAL IMMIGRATION CONSEQUENCES" INCLUDES
 BUT IS NOT LIMITED TO THE USE OF THE RELEVANT PENAL LAW SECTION  IN  ANY
 REMOVAL PROCEEDING OR ADJUDICATION UNDER FEDERAL IMMIGRATION LAW.
   (II)  ALL RECORDS, PAPERS, AND AFFIRMATIONS SUBMITTED BY THE DEFENDANT
 TO ESTABLISH THAT HE OR SHE IS NOT A UNITED STATES CITIZEN AND THAT  THE
 CONVICTION  HAS  POTENTIAL OR ACTUAL IMMIGRATION CONSEQUENCES ARE CONFI-
 DENTIAL AND MAY NOT BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE
 A. 3057                             3
 
 AGENCY, EXCEPT  WHERE  SPECIFICALLY  REQUIRED  BY  STATUTE  OR  WHEN  SO
 REQUESTED BY THE DEFENDANT.
   (III)  UNLESS THE REQUIRED NOTIFICATION APPEARS ON THE RECORD OR IF NO
 RECORD EXISTS, THE DEFENDANT SHALL BE PRESUMED TO HAVE NOT RECEIVED  THE
 NOTIFICATION FROM THE COURT.
   (IV)  THIS  REMEDY FOR THE COURT'S FAILURE TO PROVIDE THE NOTIFICATION
 IS REQUIRED NOTWITHSTANDING ANY PRESERVATION REQUIREMENT OR  FAILURE  TO
 OBJECT BY THE DEFENDANT TO THE COURT'S FAILURE TO GIVE THE NOTIFICATION.
   (V) THIS REMEDY FOR THE COURT'S FAILURE TO PROVIDE THE NOTIFICATION IS
 REQUIRED NOTWITHSTANDING ANY PREJUDICE REQUIREMENT.
   (D)  NO  COURT MAY RELY ON THE EXISTENCE OF A NOTIFICATION GIVEN UNDER
 THIS SUBDIVISION IN CONSIDERING WHETHER A DEFENDANT  SUFFERED  PREJUDICE
 OR  RECEIVED  MEANINGFUL  REPRESENTATION  UNDER THE CONSTITUTION OF THIS
 STATE.   MEANINGFUL REPRESENTATION REQUIRES,  AT  MINIMUM,  FOR  DEFENSE
 COUNSEL  TO  DETERMINE,  ADVISE, AND NEGOTIATE EFFECTIVELY REGARDING THE
 IMMIGRATION CONSEQUENCES OF A DEFENDANT'S CHARGES, PLEA, OR CONVICTION.
   § 2. This act shall take effect on the ninetieth day  after  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 one of
 this  act  shall  not affect the repeal of such subdivision and shall be
 deemed repealed therewith.