Bill Text: NY A02218 | 2013-2014 | General Assembly | Introduced
Bill Title: Requires a court advisement of possible immigration consequences, including but not limited to, deportation, immigration detention, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States, to a noncitizen of pleading guilty to a state law offense; 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-05-20 - enacting clause stricken [A02218 Detail]
Download: New_York-2013-A02218-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2218
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the criminal procedure law, in relation to requiring a
court advisement of possible immigration consequences to a noncitizen
of pleading guilty to a state law offense
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Legislative finding and declaration. The legislature finds
2 and declares that in many instances involving an individual who is not a
3 citizen of the United States charged with an offense punishable under
4 state law, a plea of guilty is entered without the defendant knowing
5 that a conviction of such offense is grounds for deportation, immi-
6 gration detention, exclusion from admission to the United States, or
7 denial of naturalization pursuant to the laws of the United States.
8 Therefore, it is the intent of the legislature by enacting this act to
9 promote fairness to such accused individuals by requiring in such cases
10 that acceptance of a guilty plea be preceded by an appropriate warning
11 of the special consequences for such a defendant which may result from
12 the plea. It is also the intent of the legislature that the court in
13 such cases shall grant the defendant a reasonable amount of time to
14 negotiate with the prosecutor in the event the defendant or the defend-
15 ant's counsel was unaware of the possibility of deportation, immigration
16 detention, exclusion from admission to the United States, or denial of
17 naturalization as a result of conviction. It is further the intent of
18 the legislature that at the time of the plea no defendant shall be
19 required to disclose his or her legal status to the court.
20 S 2. Subdivision 4 of section 170.10 of the criminal procedure law is
21 amended by adding a new paragraph (f) to read as follows:
22 (F) WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
23 INFORMATION OR A MISDEMEANOR COMPLAINT, AT ARRAIGNMENT AND PRIOR TO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05127-01-3
A. 2218 2
1 ACCEPTANCE OF A PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINIS-
2 TERING ANY OTHER WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING
3 ADVISEMENT ON THE RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT
4 OF RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFEND-
5 ANT; "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY
6 ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION
7 OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPOR-
8 TATION, IMMIGRATION DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED
9 STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED
10 STATES." THIS ADVISEMENT SHALL BE GIVEN TO ALL DEFENDANTS AND NO
11 DEFENDANT SHALL BE REQUIRED TO DISCLOSE HIS OR HER LEGAL STATUS IN THE
12 UNITED STATES TO THE COURT.
13 S 3. Section 180.10 of the criminal procedure law is amended by adding
14 a new subdivision 7 to read as follows:
15 7. AT ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE OF A
16 PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY OTHER
17 WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING ADVISEMENT ON THE
18 RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT OF RECORD ON A
19 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
20 NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPT-
21 ANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE OFFENSE FOR
22 WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, IMMIGRATION
23 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
24 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES." THIS ADVISEMENT
25 SHALL BE GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED TO
26 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
27 S 4. Section 210.15 of the criminal procedure law is amended by adding
28 a new subdivision 4 to read as follows:
29 4. AT ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE OF A
30 PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY OTHER
31 WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING ADVISEMENT ON THE
32 RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT OF RECORD ON A
33 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
34 NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPT-
35 ANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE OFFENSE FOR
36 WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, IMMIGRATION
37 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
38 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES." THIS ADVISEMENT
39 SHALL BE GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED TO
40 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
41 S 5. Subdivision 7 of section 220.50 of the criminal procedure law, as
42 amended by chapter 738 of the laws of 2004, is amended to read as
43 follows:
44 7. Prior to accepting a defendant's plea of guilty to [a count or
45 counts of an indictment or a superior court information charging a felo-
46 ny offense] ANY OFFENSE PUNISHABLE UNDER STATE LAW, the court must
47 advise the defendant on the record OR IF THE COURT IS NOT A COURT OF
48 RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT,
49 that if the defendant is not a citizen of the United States, the defend-
50 ant's plea of guilty and the court's acceptance thereof may result in
51 the defendant's deportation, IMMIGRATION DETENTION, exclusion from
52 admission to the United States or denial of [naturalization] CITIZENSHIP
53 pursuant to the laws of the United States. Where the plea of guilty is
54 to a count or counts of an indictment charging a felony offense other
55 than a violent felony offense as defined in section 70.02 of the penal
56 law or an A-I felony offense other than an A-I felony as defined in
A. 2218 3
1 article two hundred twenty of the penal law, the court must also, prior
2 to accepting such plea, advise the defendant that, if the defendant is
3 not a citizen of the United States and is or becomes the subject of a
4 final order of deportation issued by the United States Immigration and
5 Naturalization Service, the defendant may be paroled to the custody of
6 the Immigration and Naturalization Service for deportation purposes at
7 any time subsequent to the commencement of any indeterminate or determi-
8 nate prison sentence imposed as a result of the defendant's plea. [The
9 failure to advise the defendant pursuant to this subdivision shall not
10 be deemed to affect the voluntariness of a plea of guilty or the validi-
11 ty of a conviction, nor shall it afford a defendant any rights in a
12 subsequent proceeding relating to such defendant's deportation, exclu-
13 sion or denial of naturalization.] THIS ADVISEMENT SHALL BE GIVEN TO ALL
14 DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED, AT THE TIME OF THE PLEA,
15 TO DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES, TO THE COURT.
16 S 6. Section 220.60 of the criminal procedure law is amended by adding
17 two new subdivisions 5 and 6 to read as follows:
18 5. IF THE COURT FAILS TO MAKE THE ADVISEMENT PRIOR TO ACCEPTING A
19 DEFENDANT'S PLEA OF GUILTY AS REQUIRED BY PARAGRAPH (F) OF SUBDIVISION
20 FOUR OF SECTION 170.10, AS REQUIRED BY SUBDIVISION SEVEN OF SECTION
21 180.10, AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15, OR AS
22 REQUIRED BY SUBDIVISION SEVEN OF SECTION 220.50 OF THIS CHAPTER, AND THE
23 DEFENDANT SHOWS THAT ACCEPTANCE OF THE PLEA OF GUILTY OR CONVICTION OF
24 THE OFFENSE TO WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES
25 FOR THE DEFENDANT OF DEPORTATION, IMMIGRATION DETENTION, EXCLUSION FROM
26 ADMISSION TO THE UNITED STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE
27 LAWS OF THE UNITED STATES, THE COURT, UPON REQUEST OF THE DEFENDANT,
28 SHALL PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY AND ENTER A
29 PLEA OF NOT GUILTY AT ANY TIME BEFORE THE IMPOSITION OF SENTENCE, AND IN
30 SUCH EVENT THE ENTIRE ACCUSATORY INSTRUMENT, AS IT EXISTED AT THE TIME
31 OF THE PLEA OF GUILTY, IS RESTORED.
32 6. A COURT'S FAILURE TO PROVIDE THE ADVISEMENT REQUIRED BY THIS
33 SECTION SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF THE
34 PLEA OR CONSTITUTE GROUNDS FOR FINDING A PRIOR CONVICTION INVALID IF
35 SUCH FAILURE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION.
36 NOTHING IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT IN
37 THE SOUND EXERCISE OF ITS DISCRETION, FROM VACATING A JUDGMENT OR
38 PERMITTING A DEFENDANT TO WITHDRAW A PLEA, ACCORDING TO LAW.
39 S 7. Paragraph (i) of subdivision 1 of section 440.10 of the criminal
40 procedure law, as added by chapter 332 of the laws of 2010, is amended
41 and a new paragraph (j) is added to read as follows:
42 (i) The judgment is a conviction where the arresting charge was under
43 section 240.37 (loitering for the purpose of engaging in a prostitution
44 offense, provided that the defendant was not alleged to be loitering for
45 the purpose of patronizing a prostitute or promoting prostitution) or
46 230.00 (prostitution) of the penal law, and the defendant's partic-
47 ipation in the offense was a result of having been a victim of sex traf-
48 ficking under section 230.34 of the penal law or trafficking in persons
49 under the Trafficking Victims Protection Act (United States Code, title
50 22, chapter 78); provided that
51 (i) a motion under this paragraph shall be made with due diligence,
52 after the defendant has ceased to be a victim of such trafficking or has
53 sought services for victims of such trafficking, subject to reasonable
54 concerns for the safety of the defendant, family members of the defend-
55 ant, or other victims of such trafficking that may be jeopardized by the
A. 2218 4
1 bringing of such motion, or for other reasons consistent with the
2 purpose of this paragraph; and
3 (ii) official documentation of the defendant's status as a victim of
4 sex trafficking or trafficking in persons at the time of the offense
5 from a federal, state or local government agency shall create a presump-
6 tion that the defendant's participation in the offense was a result of
7 having been a victim of sex trafficking or trafficking in persons, but
8 shall not be required for granting a motion under this paragraph[.];
9 (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
10 THERETO FAILED TO ADVISE THE DEFENDANT PRIOR TO ACCEPTING A DEFENDANT'S
11 PLEA OF GUILTY AS REQUIRED BY PARAGRAPH (F) OF SUBDIVISION FOUR OF
12 SECTION 170.10, AS REQUIRED BY SUBDIVISION SEVEN OF SECTION 180.10, AS
13 REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15, OR AS REQUIRED BY SUBDI-
14 VISION SEVEN OF SECTION 220.50 OF THIS CHAPTER, PROVIDED THAT THE
15 DEFENDANT SHOWS THAT THE ENTRY OF AND ACCEPTANCE OF THE PLEA OF GUILTY
16 MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF DEPORTATION, IMMIGRATION
17 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
18 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES.
19 S 8. Section 440.10 of the criminal procedure law is amended by adding
20 a new subdivision 9 to read as follows:
21 9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
22 (J) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE
23 OF THE PLEA OF GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF
24 DEPORTATION, IMMIGRATION DETENTION, EXCLUSION FROM ADMISSION TO THE
25 UNITED STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE LAWS OF THE
26 UNITED STATES, THE COURT MUST VACATE THE JUDGMENT, AND PERMIT THE WITH-
27 DRAWAL OF THE GUILTY PLEA. IN SUCH EVENT, THE ENTIRE ACCUSATORY INSTRU-
28 MENT, AS IT EXISTED AT THE TIME OF THE PLEA OF GUILTY, IS RESTORED, AND
29 THE COURT MAY TAKE SUCH OTHER ACTION AS WOULD BE APPROPRIATE UNDER
30 SUBDIVISION FOUR OF THIS SECTION.
31 S 9. This act shall take effect on the first of November next succeed-
32 ing the date on which it shall have become a law, provided, however,
33 that the amendments to subdivision 7 of section 220.50 of the criminal
34 procedure law made by section five of this act shall not affect the
35 repeal of such subdivision and shall be deemed repealed therewith.
