S216-2013 Actions

• Jan 9, 2013: REFERRED TO CODES

S216-2013 Memo

BILL NUMBER:S216

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to requiring the court,
prior to accepting a plea to a misdemeanor or violation, to advise the
defendant of the risk of deportation if he or she is not a citizen

PURPOSE OR GENERAL IDEA OF BILL:
This bill requires notification of alien defendants during the plea
process that pleading guilty to a misdemeanor or violation may
subject them to automatic removal (deportation) or denial of
naturalization.

SUMMARY OF SPECIFIC PROVISIONS:
This bill adds a new subdivision 5 to section 340.20 of the criminal
procedure law, requiring alien defendants to be notified that
pleading guilty to misdemeanors or violations may have immigration
consequences Such notification shall be on the record. For those
courts not of record, the bill requires a writing affirming that the
warning was given contemporaneous with the plea, and a form would
suffice for this purpose.

JUSTIFICATION:
In 1996, Congress made major changes to federal immigration law.
Under the new federal law, legal immigrants and residents may be
subject to automatic removal (deportation) even if they plead guilty
to some minor offenses classified under N.Y. law as violations.
Deportation may also be a threat for those whose proceedings do not
result in a conviction under N.Y. law (i.e. entry of guilty plea to
drug treatment on order of court as alternative to conviction and
incarceration).

Unfortunately, defendants pleading guilty to these minor offenses are
unaware of the harsh new federal immigration consequences of doing
so. Because of the broad scope of the 1996 immigration law,
defendants who have plead guilty to some minor offenses, even more
than 25 years ago, are now subject to deportation. As a result,
immigrant communities have lost confidence in state courts and the
criminal justice system generally.

This bill requires defendants to be notified during the plea process
for misdemeanors and violations that pleading guilty may subject them
to automatic deportation or denial of naturalization. Legal residents
and immigrants will 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 fine.

At least nine 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.


Defendants should, at the very least, be made aware that pleading
guilty to some of these minor offenses could put them on a plane out
of the country or worse -- removal to a detention center cell for an
indefinite term while awaiting deportation. This bill, while
providing no rights to illegal immigrants, provides legal immigrants
and residents with the protection of making a plea with the
understanding of its immigration consequences.

LEGISLATIVE HISTORY:
S.4077/A.7175 of 1999-2000 Passed Assembly
A.7702 of 2001-2002 Passed Assembly
A.6019 of 2003-2004 Rules Committee
A.6884 of 2005-2006 Codes Committee
A.4166 of 2007-2008 Codes Committee
S.4399-A/A.4963-A of 2010
2012: Committee Discharged and Committed to Rules

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect on the 90th day after enactment.

S216-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                          216
 2013-2014 Regular Sessions
 I N  SENATE
 (PREFILED)
 January 9, 2013
 
 Introduced  by Sen. SQUADRON -- 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 the
 court, prior to accepting a plea to a  misdemeanor  or  violation,  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.

Section 340.20 of the criminal procedure law is amended by
 adding a new subdivision 5 to read as follows:

 5. PRIOR TO ACCEPTING A DEFENDANT'S PLEA  OF  GUILTY  TO  A  COUNT  OR
 COUNTS  OF  AN  INFORMATION,  AS  DEFINED  BY SUBDIVISION ONE OF SECTION
 340.10 OF THIS ARTICLE, CHARGING A MISDEMEANOR, AS DEFINED  IN  SUBDIVI
 SION  TWO  OF SECTION 55.10 OF THE PENAL LAW, OR A VIOLATION, AS DEFINED
 BY SUBDIVISION THREE OF SECTION 55.10 OF THE PENAL LAW, THE COURT  SHALL
 ADVISE  THE  DEFENDANT  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 OR REMOVAL,  EXCLUSION
 FROM ADMISSION TO THE UNITED STATES OR DENIAL OF NATURALIZATION PURSUANT
 TO THE LAWS OF THE UNITED STATES. IN ADDITION, THE COURT SHALL, 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  REMOVAL  ISSUED  BY THE UNITED STATES IMMIGRATION AND CUSTOMS
 ENFORCEMENT, THE DEFENDANT MAY BE RELEASED TO THE CUSTODY OF  THE  IMMI
 GRATION  AND CUSTOMS ENFORCEMENT FOR REMOVAL PURPOSES AS A RESULT OF THE
 DEFENDANT'S PLEA OF GUILTY.  THE FAILURE TO ADVISE THE DEFENDANT  PURSU
 ANT  TO THIS SUBDIVISION SHALL NOT BE DEEMED TO AFFECT THE VOLUNTARINESS
 OF A PLEA OF GUILTY OF THE VALIDITY OF A CONVICTION, NOR SHALL IT AFFORD
 A DEFENDANT ANY RIGHTS IN SUBSEQUENT PROCEEDING RELATING TO SUCH DEFEND
 ANT'S DEPORTATION, EXCLUSION OR DENIAL OR  NATURALIZATION.    THE  COURT
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD00211-01-3
 
       S. 216                              2
 SHALL, CONTEMPORANEOUS WITH THE PLEA, AFFIRM ON THE RECORD OR IN A WRIT
 ING THAT THE DEFENDANT HAS BEEN GIVEN THE NOTICE REQUIRED BY THIS SUBDI
 VISION.
 

S  2.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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