Bill S116-2013

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

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.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

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BILL NUMBER:S116

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: 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.


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STATE OF NEW YORK ________________________________________________________________________ 116 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
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. S 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
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. S 3. Section 180.10 of the criminal procedure law is amended by adding a new subdivision 7 to read as follows: 7. 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. 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, 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. S 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-
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.] S 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 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. S 7. Paragraph (i) of subdivision 1 of section 440.10 of the criminal procedure law, as added by chapter 332 of the laws of 2010, is amended and a new paragraph (j) is added to read as follows: (i) The judgment is a conviction where the arresting charge was under section 240.37 (loitering for the purpose of engaging in a prostitution offense, provided that the defendant was not alleged to be loitering for the purpose of patronizing a prostitute or promoting prostitution) or 230.00 (prostitution) of the penal law, and the defendant's partic- ipation in the offense was a result of having been a victim of sex traf- ficking under section 230.34 of the penal law or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78); provided that (i) a motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defend- ant, or other victims of such trafficking that may be jeopardized by the bringing of such motion, or for other reasons consistent with the purpose of this paragraph; and (ii) official documentation of the defendant's status as a victim of sex trafficking or trafficking in persons at the time of the offense
from a federal, state or local government agency shall create a presump- tion that the defendant's participation in the offense was a result of having been a victim of sex trafficking 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 SEVEN 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. S 8. Section 440.10 of the criminal procedure law is amended by adding a new subdivision 9 to read as follows: 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. S 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. S 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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