Requires courts, prior to accepting a plea to a misdemeanor or violation, to provide notice to the defendant that such plea and the acceptance thereof could result in deportation, removal from the United States, exclusion from the United States or denial of citizenship, if the defendant is not a citizen of the United States.
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
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: This act shall take effect on the 90th day after enactment.
STATE OF NEW YORK ________________________________________________________________________ 632 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________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 COURTEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00075-01-1 S. 632 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.