A9639-2011 Actions

• Mar 22, 2012: referred to correction

A9639-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         9639
 I N  ASSEMBLY
 March 22, 2012
 
 Introduced  by M. of A. LINARES -- read once and referred to the Commit
 tee on Correction
 

AN ACT to amend the correction law, in relation to  persons  not  to  be
 detained
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. The correction law is amended by adding a new section  71-b
 to read as follows:

 

S  71-B.  PERSONS  NOT  TO  BE  DETAINED.  1. FOR THE PURPOSES OF THIS
 SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

 (A) "CIVIL IMMIGRATION DETAINER" SHALL MEAN A DETAINER ISSUED PURSUANT
 TO 8 C.F.R. 287.7.
 (B) "CONVICTED OF A CRIME"  SHALL  MEAN  A  FINAL  JUDGMENT  OF  GUILT
 ENTERED  ON A MISDEMEANOR OR FELONY CHARGE IN ANY OF THE CRIMINAL COURTS
 OF THE STATE, AS DEFINED IN SECTION 10.10 OF THE CRIMINAL PROCEDURE LAW,
 OR ANY OTHER COURT OF  COMPETENT  JURISDICTION  IN  THE  UNITED  STATES.
 PERSONS  ADJUDICATED  AS  YOUTHFUL  OFFENDERS, PURSUANT TO ARTICLE SEVEN
 HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW OR A  COMPARABLE  PROVISION
 OF  FEDERAL LAW OR THE LAW OF ANOTHER STATE, OR JUVENILE DELINQUENTS, AS
 DEFINED BY SUBDIVISION ONE OF SECTION 301.2 OF THE FAMILY COURT ACT OR A
 COMPARABLE PROVISION OF FEDERAL LAW OR THE LAW OF ANOTHER  STATE,  SHALL
 NOT BE CONSIDERED CONVICTED OF A CRIME.
 (C) "FEDERAL IMMIGRATION AUTHORITIES" SHALL MEAN ANY OFFICER, EMPLOYEE
 OR PERSON OTHERWISE PAID BY OR ACTING AS AN AGENT OF UNITED STATES IMMI
 GRATION  AND  CUSTOMS  ENFORCEMENT  OR ANY DIVISION THEREOF OR ANY OTHER
 OFFICER, EMPLOYEE OR PERSON OTHERWISE PAID BY OR ACTING AS AN  AGENT  OF
 THE  UNITED  STATES  DEPARTMENT OF HOMELAND SECURITY WHO IS CHARGED WITH
 ENFORCEMENT OF THE CIVIL PROVISIONS OF THE IMMIGRATION  AND  NATIONALITY
 ACT.
 (D)  "PENDING  CRIMINAL CASE" SHALL MEAN A CASE IN ANY OF THE CRIMINAL
 COURTS OF THE STATE, AS DEFINED IN SECTION 10.10 OF THE CRIMINAL  PROCE
 DURE  LAW,  OR  ANY  OTHER COURT OF COMPETENT JURISDICTION IN THE UNITED
 STATES, EXCLUDING THE FAMILY COURT OF THE STATE OR A COMPARABLE COURT IN
 ANOTHER JURISDICTION IN THE UNITED STATES, WHERE JUDGMENT HAS  NOT  BEEN
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD14901-01-2
 
       A. 9639                             2
 ENTERED  AND  WHERE A MISDEMEANOR OR FELONY CHARGE IS PENDING. ANY INDI
 VIDUAL WHOSE CASE IS DISPOSED OF WITH AN ADJOURNMENT IN CONTEMPLATION OF
 DISMISSAL PURSUANT TO SECTION 170.55 OR 170.56 OF THE CRIMINAL PROCEDURE
 LAW OR A COMPARABLE PROVISION OF FEDERAL LAW OR THE LAW OF ANOTHER STATE
 SHALL NOT BE DEEMED TO BE A DEFENDANT IN A PENDING CRIMINAL CASE. A CASE
 IN WHICH THE HIGHEST CHARGE IS A VIOLATION OR A NON-CRIMINAL INFRACTION,
 INCLUDING  A  CASE  IN  WHICH AN INDIVIDUAL HAS BEEN SENTENCED TO CONDI
 TIONAL DISCHARGE FOR COMMITTING A VIOLATION OR A NON-CRIMINAL INFRACTION
 PURSUANT TO SECTION 410.10 OF THE CRIMINAL PROCEDURE LAW OR A COMPARABLE
 PROVISION OF FEDERAL LAW OR THE LAW  OF  ANOTHER  STATE,  SHALL  NOT  BE
 DEEMED TO BE A PENDING CRIMINAL CASE.
 (E)  "TERRORIST  SCREENING  DATABASE"  SHALL  MEAN  THE  UNITED STATES
 TERRORIST WATCH LIST OR ANY SIMILAR OR SUCCESSOR LIST MAINTAINED BY  THE
 UNITED STATES.
 2. (A) THE DEPARTMENT SHALL NOT HONOR A CIVIL IMMIGRATION DETAINER BY:

 (I)  HOLDING  AN INDIVIDUAL BEYOND THE TIME WHEN SUCH INDIVIDUAL WOULD
 OTHERWISE BE RELEASED FROM THE DEPARTMENT'S  CUSTODY,  EXCEPT  FOR  SUCH
 REASONABLE TIME AS IS NECESSARY TO CONDUCT THE SEARCH SPECIFIED IN PARA
 GRAPH (B) OF THIS SUBDIVISION, OR
 (II)  NOTIFYING  FEDERAL  IMMIGRATION AUTHORITIES OF SUCH INDIVIDUAL'S
 RELEASE.
 (B) PARAGRAPH (A) OF THIS SUBDIVISION SHALL NOT APPLY WHEN:

 (I) A SEARCH, CONDUCTED AT OR ABOUT  THE  TIME  WHEN  SUCH  INDIVIDUAL
 WOULD  OTHERWISE BE RELEASED FROM THE DEPARTMENT'S CUSTODY, OF STATE AND
 FEDERAL DATABASES, OR  ANY  SIMILAR  OR  SUCCESSOR  DATABASES,  ACCESSED
 THROUGH  THE  DIVISION OF CRIMINAL JUSTICE SERVICES E-JUSTICENY COMPUTER
 APPLICATION, OR ANY SIMILAR OR SUCCESSOR COMPUTER APPLICATION MAINTAINED
 BY THE STATE, INDICATES THAT SUCH INDIVIDUAL:

 (A) HAS BEEN CONVICTED OF A CRIME;
 (B) IS A DEFENDANT IN A PENDING CRIMINAL CASE;
 (C) HAS AN OUTSTANDING CRIMINAL WARRANT IN THE STATE OR ANOTHER JURIS
 DICTION IN THE UNITED STATES;
 (D) IS IDENTIFIED AS A KNOWN  GANG  MEMBER  IN  THE  DATABASE  OF  THE
 NATIONAL  CRIME  INFORMATION CENTER OR ANY SIMILAR OR SUCCESSOR DATABASE
 MAINTAINED BY THE UNITED STATES; OR
 (E) IS IDENTIFIED AS A POSSIBLE MATCH IN THE TERRORIST SCREENING DATA
 BASE.
 (II) THE SEARCH CONDUCTED PURSUANT TO SUBPARAGRAPH (I) OF  THIS  PARA
 GRAPH  INDICATES,  OR  THE DEPARTMENT HAS BEEN INFORMED BY FEDERAL IMMI
 GRATION AUTHORITIES, THAT SUCH INDIVIDUAL:

 (A) HAS AN OUTSTANDING WARRANT OF REMOVAL ISSUED PURSUANT TO 8  C.F.R.
 241.2; OR
 (B)  IS  OR  HAS  PREVIOUSLY  BEEN SUBJECT TO A FINAL ORDER OF REMOVAL
 PURSUANT TO 8 C.F.R. 1241.1.
 (C) NOTHING IN THIS SECTION SHALL AFFECT THE OBLIGATION OF THE DEPART
 MENT TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION OBTAINED  PURSU
 ANT TO SUBDIVISION TWO OF THIS SECTION.
 3.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CONFER ANY AUTHORITY
 ON ANY ENTITY TO HOLD INDIVIDUALS ON CIVIL IMMIGRATION DETAINERS  BEYOND
 THE  AUTHORITY,  IF  ANY,  THAT  EXISTED  PRIOR TO THE ENACTMENT OF THIS
 SECTION.
 4. NO LATER THAN THE THIRTIETH OF SEPTEMBER, TWO THOUSAND THE THIRTEEN
 AND NO LATER THAN THIRTIETH OF SEPTEMBER OF EACH  YEAR  THEREAFTER,  THE
 DEPARTMENT  SHALL  POST A REPORT ON THE DEPARTMENT WEBSITE THAT INCLUDES
 THE FOLLOWING INFORMATION FOR THE PRECEDING TWELVE MONTH PERIOD:

 
       A. 9639                             3
 (A) THE NUMBER OF  INDIVIDUALS  HELD  PURSUANT  TO  CIVIL  IMMIGRATION
 DETAINERS  BEYOND  THE  TIME  WHEN  SUCH  INDIVIDUAL  WOULD OTHERWISE BE
 RELEASED FROM THE DEPARTMENT'S CUSTODY;
 (B)  THE  NUMBER  OF INDIVIDUALS TRANSFERRED TO THE CUSTODY OF FEDERAL
 IMMIGRATION AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS;
 (C) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 AT LEAST ONE FELONY CONVICTION;
 (D) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 AT LEAST ONE MISDEMEANOR CONVICTION BUT NO FELONY CONVICTIONS;
 (E) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 NO MISDEMEANOR OR FELONY CONVICTIONS;
 (F) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 NO MISDEMEANOR OR FELONY CONVICTIONS AND WERE IDENTIFIED AS  KNOWN  GANG
 MEMBERS  IN  THE  DATABASE OF THE NATIONAL CRIME INFORMATION CENTER OR A
 SUCCESSOR DATABASE MAINTAINED BY THE UNITED STATES;
 (G) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 NO MISDEMEANOR OR FELONY CONVICTIONS AND  WERE  IDENTIFIED  AS  POSSIBLE
 MATCHES IN THE TERRORIST SCREENING DATABASE;
 (H)  THE  NUMBER  OF INDIVIDUALS TRANSFERRED TO THE CUSTODY OF FEDERAL
 IMMIGRATION AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO  HAD
 NO  MISDEMEANOR OR FELONY CONVICTIONS AND WERE IDENTIFIED AS BOTH POSSI
 BLE MATCHES IN THE TERRORIST SCREENING DATABASE AND KNOWN  GANG  MEMBERS
 IN  THE DATABASE OF THE NATIONAL CRIME INFORMATION CENTER OR A SUCCESSOR
 DATABASE MAINTAINED BY THE UNITED STATES;
 (I) THE NUMBER OF INDIVIDUALS TRANSFERRED TO THE  CUSTODY  OF  FEDERAL
 IMMIGRATION  AUTHORITIES PURSUANT TO CIVIL IMMIGRATION DETAINERS WHO HAD
 NO MISDEMEANOR OR FELONY CONVICTIONS AND WERE DEFENDANTS  IN  A  PENDING
 CRIMINAL CASE;
 (J)  THE  AMOUNT  OF STATE CRIMINAL ALIEN ASSISTANCE FUNDING REQUESTED
 AND RECEIVED FROM THE FEDERAL GOVERNMENT; AND
 (K) THE NUMBER OF INDIVIDUALS FOR  WHOM  CIVIL  IMMIGRATION  DETAINERS
 WERE NOT HONORED PURSUANT TO SUBDIVISION TWO OF THIS SECTION.
 

S 2. This act shall take effect on the one hundred twentieth day after
 it shall have become a law; provided, however, that effective immediate
 ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
 necessary for the implementation of this act on its effective  date  are
 authorized  and  directed  to  be  made  and completed on or before such
 effective date.

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