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.