Bill Text: NY A03057 | 2023-2024 | General Assembly | Introduced

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Bill Title: Requires courts, prior to accepting a plea, 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.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Vetoed) 2023-12-22 - tabled [A03057 Detail]

Download: New_York-2023-A03057-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          3057

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    February 2, 2023
                                       ___________

        Introduced  by  M. of A. CRUZ -- read once and referred 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 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:

     1    Section 1. Subdivision 7 of section 220.50 of the  criminal  procedure
     2  law,  as  amended by chapter 738 of the laws of 2004, is amended to read
     3  as follows:
     4    7. (a) Prior to [accepting a defendant's plea of guilty to a count  or
     5  counts of an indictment or a superior court information charging a felo-
     6  ny  offense,  the court must advise the defendant on the record, that if
     7  the defendant is not a citizen of the  United  States,  the  defendant's
     8  plea  of  guilty  and  the  court's acceptance thereof may result in the
     9  defendant's deportation, exclusion from admission to the  United  States
    10  or  denial  of naturalization pursuant to the laws of the United States.
    11  Where the plea of guilty is to a count or counts of an indictment charg-
    12  ing a felony offense other than a violent felony offense as  defined  in
    13  section  70.02  of  the penal law or an A-I felony offense other than an
    14  A-I felony as defined in article two hundred twenty of  the  penal  law,
    15  the  court must also, prior to accepting such plea, advise the defendant
    16  that, if the defendant is not a citizen of the United States and  is  or
    17  becomes the subject of a final order of deportation issued by the United
    18  States  Immigration  and  Naturalization  Service,  the defendant may be
    19  paroled to the custody of the Immigration and Naturalization Service for
    20  deportation purposes at any time subsequent to the commencement  of  any
    21  indeterminate  or determinate prison sentence imposed as a result of the
    22  defendant's plea. The failure to advise the defendant pursuant  to  this
    23  subdivision shall not be deemed to affect the voluntariness of a plea of
    24  guilty  or the validity of a conviction, nor shall it afford a defendant

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07452-01-3
        A. 3057                             2

     1  any rights in a  subsequent  proceeding  relating  to  such  defendant's
     2  deportation,  exclusion  or  denial  of naturalization.] the defendant's
     3  entry of a plea of guilty to any accusatory instrument in  any  criminal
     4  action,  the  court  shall orally give every defendant on the record the
     5  following notification: "If you are not a citizen of the United  States,
     6  you may become deportable, ineligible for naturalization or inadmissible
     7  to the United States based on a conviction by plea or verdict."
     8    (i)  The  court  shall  notify  every defendant in a language that the
     9  defendant understands without inquiring about the  defendant's  citizen-
    10  ship or immigration status on the record.
    11    (ii)  Only  the court shall notify defendants about the possibility of
    12  deportability, ineligibility for naturalization, or  inadmissibility  to
    13  the  United States pursuant to this paragraph.  The court and the people
    14  shall not make any  other  statements  about  immigration  consequences,
    15  including  but  not  limited  to statements regarding likely immigration
    16  consequences, condition defendant's  guilty  plea  regardless  of  immi-
    17  gration consequences, or require waiver of any issue or claim related to
    18  immigration consequences.
    19    (iii) Upon request of the defendant, the court shall allow the defend-
    20  ant additional time to secure counsel or consider the appropriateness of
    21  the  plea following the notification described in this subdivision, with
    22  such plea offer remaining open.
    23    (iv) Advice regarding immigration consequences given by defense  coun-
    24  sel does not absolve the court of its independent obligation to give the
    25  notice mandated in this subdivision.
    26    (v)  The  notification  does not absolve defense counsel of his or her
    27  independent obligation to explain the immigration  consequences  to  the
    28  defendant.
    29    (vi)  Nothing in this subdivision shall prohibit a court or the people
    30  from considering the immigration status of defendant in accepting  entry
    31  of  a  plea, imposing a lower sentence according to law, consenting to a
    32  lesser included offense, or filing an additional accusatory instrument.
    33    (b) At the time of  defendant's  arraignment,  the  court  shall  also
    34  comply  with  paragraph (a) of this subdivision, though failure to do so
    35  does not require vacatur pursuant to paragraph (c) of this subdivision.
    36    (c) When a conviction or plea  has  potential  or  actual  immigration
    37  consequences  for  a  defendant,  the court's failure to strictly comply
    38  with paragraph (a) of this subdivision, on or after the  effective  date
    39  of  this  subdivision, shall render the plea unknowing, involuntary, and
    40  unintelligent, requiring vacatur.  The court's failure to have  substan-
    41  tially  complied with paragraph (a) of this subdivision in any non-final
    42  criminal prosecution from November nineteenth, two thousand thirteen  to
    43  the  effective date of this subdivision shall render the plea unknowing,
    44  involuntary, and unintelligent, requiring  vacatur.  An  application  to
    45  vacate  the  judgment or withdraw the defendant's plea of guilty on this
    46  basis can be raised either on direct appeal or at any time pursuant to a
    47  motion under paragraph (h) of subdivision one of section 440.10 of  this
    48  chapter.
    49    (i)  The  term "potential or actual immigration consequences" includes
    50  but is not limited to the use of the relevant penal law section  in  any
    51  removal proceeding or adjudication under federal immigration law.
    52    (ii)  All records, papers, and affirmations submitted by the defendant
    53  to establish that he or she is not a United States citizen and that  the
    54  conviction  has  potential or actual immigration consequences are confi-
    55  dential and may not be made available to any person or public or private
        A. 3057                             3

     1  agency, except  where  specifically  required  by  statute  or  when  so
     2  requested by the defendant.
     3    (iii)  Unless the required notification appears on the record or if no
     4  record exists, the defendant shall be presumed to have not received  the
     5  notification from the court.
     6    (iv)  This  remedy for the court's failure to provide the notification
     7  is required notwithstanding any preservation requirement or  failure  to
     8  object by the defendant to the court's failure to give the notification.
     9    (v) This remedy for the court's failure to provide the notification is
    10  required notwithstanding any prejudice requirement.
    11    (d)  No  court may rely on the existence of a notification given under
    12  this subdivision in considering whether a defendant  suffered  prejudice
    13  or  received  meaningful  representation  under the constitution of this
    14  state.   Meaningful representation requires,  at  minimum,  for  defense
    15  counsel  to  determine,  advise, and negotiate effectively regarding the
    16  immigration consequences of a defendant's charges, plea, or conviction.
    17    § 2. This act shall take effect on the ninetieth day  after  it  shall
    18  have become a law; provided, however, that the amendments to subdivision
    19  7 of section 220.50 of the criminal procedure law made by section one of
    20  this  act  shall  not affect the repeal of such subdivision and shall be
    21  deemed repealed therewith.