S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1863
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2023
                                ___________
 
 Introduced by M. of A. KIM -- read once and referred 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 a noncit-
   izen resident 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 defendant
 knowing  that  a  conviction of such offense is grounds for deportation,
 exclusion from admission to the United States, or denial of  naturaliza-
 tion  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 conse-
 quences 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 prosecu-
 tor 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.
   § 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06080-01-3
              

 A. 1863                             2
 
 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; AND
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8. 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.
   § 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.
   § 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-
 A. 1863                             3
 
 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.]
   § 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 THE 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.
   §  7. Paragraphs (j) and (k) of subdivision 1 of section 440.10 of the
 criminal procedure law, paragraph (j) as amended by chapter 131  of  the
 laws  of  2019 and paragraph (k) as amended by chapter 92 of the laws of
 2021, are amended and a new paragraph (l) is added to read as follows:
   (j) The judgment is a conviction for a class A or unclassified  misde-
 meanor  entered prior to the effective date of this paragraph and satis-
 fies the ground prescribed in paragraph (h) of this subdivision.   There
 shall  be  a rebuttable presumption that a conviction by plea to such an
 offense was not knowing, voluntary and  intelligent,  based  on  ongoing
 collateral  consequences,  including  potential  or  actual  immigration
 consequences, and  there  shall  be  a  rebuttable  presumption  that  a
 conviction  by  verdict  constitutes  cruel and unusual punishment under
 section five of article one of the  state  constitution  based  on  such
 consequences; [or]
   (k)  The  judgment occurred prior to the effective date of the laws of
 two thousand twenty-one that amended this paragraph and is a  conviction
 for  an  offense as defined in subparagraphs (i), (ii), (iii) or (iv) of
 paragraph (k) of subdivision three of section 160.50 of  this  part,  in
 which  case  the  court  shall presume that a conviction by plea for the
 aforementioned offenses was not knowing, voluntary and intelligent if it
 has severe or ongoing consequences, including but not limited to  poten-
 A. 1863                             4
 
 tial  or  actual  immigration  consequences,  and  shall  presume that a
 conviction by verdict for the aforementioned offenses constitutes  cruel
 and  unusual  punishment  under section five of article one of the state
 constitution,  based  on  those consequences. The people may rebut these
 presumptions[.]; OR
   (1) 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 EIGHT
 OF SECTION 180.10 OR AS REQUIRED BY SUBDIVISION FOUR OF  SECTION  210.15
 OF  THIS  PART,  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.
   § 8. Section 440.10 of the criminal procedure law is amended by adding
 a new subdivision 10 to read as follows:
   10.  UPON  GRANTING  THE MOTION UPON THE GROUND, AS SET FORTH IN PARA-
 GRAPH (L) 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.
   § 9. The office of court administration shall develop a bill of rights
 and code of ethics for attorneys on how to advise  noncitizen  residents
 of  the  deportation  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.
   § 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.