Bill Text: NY A03436 | 2019-2020 | 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) 2020-01-08 - referred to codes [A03436 Detail]
Download: New_York-2019-A03436-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3436 2019-2020 Regular Sessions IN ASSEMBLY January 29, 2019 ___________ Introduced by M. of A. ORTIZ -- read once and referred to the Committee 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 § 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 24 acceptance of a plea of guilty, the court shall, in addition to adminis- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07231-01-9A. 3436 2 1 tering any other warning required by law, administer the following 2 advisement on the record to the defendant or if the court is not a court 3 of record on a writing subscribed by the court and signed by the defend- 4 ant; "If you are not a citizen of the United States, you are hereby 5 advised that acceptance by the court of a plea of guilty or conviction 6 of the offense for which you have been charged may result in your depor- 7 tation, immigration detention, exclusion from admission to the United 8 States, or denial of citizenship pursuant to the laws of the United 9 States." This advisement shall be given to all defendants and no 10 defendant shall be required to disclose his or her legal status in the 11 United States to the court. 12 § 3. Section 180.10 of the criminal procedure law is amended by adding 13 a new subdivision 8 to read as follows: 14 8. At arraignment on a felony complaint and prior to acceptance of a 15 plea of guilty, the court shall, in addition to administering any other 16 warning required by law, administer the following advisement on the 17 record to the defendant or if the court is not a court of record on a 18 writing subscribed by the court and signed by the defendant; "If you are 19 not a citizen of the United States, you are hereby advised that accept- 20 ance by the court of a plea of guilty or conviction of the offense for 21 which you have been charged may result in your deportation, immigration 22 detention, exclusion from admission to the United States, or denial of 23 citizenship pursuant to the laws of the United States." This advisement 24 shall be given to all defendants and no defendant shall be required to 25 disclose his or her legal status in the United States to the court. 26 § 4. Section 210.15 of the criminal procedure law is amended by adding 27 a new subdivision 4 to read as follows: 28 4. At arraignment on a felony complaint and prior to acceptance of a 29 plea of guilty, the court shall, in addition to administering any other 30 warning required by law, administer the following advisement on the 31 record to the defendant or if the court is not a court of record on a 32 writing subscribed by the court and signed by the defendant; "If you are 33 not a citizen of the United States, you are hereby advised that accept- 34 ance by the court of a plea of guilty or conviction of the offense for 35 which you have been charged may result in your deportation, immigration 36 detention, exclusion from admission to the United States, or denial of 37 citizenship pursuant to the laws of the United States." This advisement 38 shall be given to all defendants and no defendant shall be required to 39 disclose his or her legal status in the United States to the court. 40 § 5. Subdivision 7 of section 220.50 of the criminal procedure law, as 41 amended by chapter 738 of the laws of 2004, is amended to read as 42 follows: 43 7. Prior to accepting a defendant's plea of guilty to [a count or44counts of an indictment or a superior court information charging a felo-45ny offense] any offense punishable under state law, the court must 46 advise the defendant on the record or if the court is not a court of 47 record on a writing subscribed by the court and signed by the defendant, 48 that if the defendant is not a citizen of the United States, the defend- 49 ant's plea of guilty and the court's acceptance thereof may result in 50 the defendant's deportation, immigration detention, exclusion from 51 admission to the United States or denial of [naturalization] citizenship 52 pursuant to the laws of the United States. Where the plea of guilty is 53 to a count or counts of an indictment charging a felony offense other 54 than a violent felony offense as defined in section 70.02 of the penal 55 law or an A-I felony offense other than an A-I felony as defined in 56 article two hundred twenty of the penal law, the court must also, priorA. 3436 3 1 to accepting such plea, advise the defendant that, if the defendant is 2 not a citizen of the United States and is or becomes the subject of a 3 final order of deportation issued by the United States Immigration and 4 Naturalization Service, the defendant may be paroled to the custody of 5 the Immigration and Naturalization Service for deportation purposes at 6 any time subsequent to the commencement of any indeterminate or determi- 7 nate prison sentence imposed as a result of the defendant's plea. [The8failure to advise the defendant pursuant to this subdivision shall not9be deemed to affect the voluntariness of a plea of guilty or the validi-10ty of a conviction, nor shall it afford a defendant any rights in a11subsequent proceeding relating to such defendant's deportation, exclu-12sion or denial of naturalization.] This advisement shall be given to all 13 defendants and no defendant shall be required, at the time of the plea, 14 to disclose his or her legal status in the United States, to the court. 15 § 6. Section 220.60 of the criminal procedure law is amended by adding 16 two new subdivisions 5 and 6 to read as follows: 17 5. If the court fails to make the advisement prior to accepting a 18 defendant's plea of guilty as required by paragraph (f) of subdivision 19 four of section 170.10, as required by subdivision eight of section 20 180.10, as required by subdivision four of section 210.15, or as 21 required by subdivision seven of section 220.50 of this chapter, and the 22 defendant shows that acceptance of the plea of guilty or conviction of 23 the offense to which defendant pleaded guilty may have the consequences 24 for the defendant of deportation, immigration detention, exclusion from 25 admission to the United States, or denial of citizenship pursuant to the 26 laws of the United States, the court, upon request of the defendant, 27 shall permit the defendant to withdraw the plea of guilty and enter a 28 plea of not guilty at any time before the imposition of sentence, and in 29 such event the entire accusatory instrument, as it existed at the time 30 of the plea of guilty, is restored. 31 6. A court's failure to provide the advisement required by this 32 section shall not require the vacation of judgment or withdrawal of the 33 plea or constitute grounds for finding a prior conviction invalid if 34 such failure occurred prior to the effective date of this subdivision. 35 Nothing in this chapter, however, shall be deemed to inhibit a court in 36 the sound exercise of its discretion, from vacating a judgment or 37 permitting a defendant to withdraw a plea, according to law. 38 § 7. Paragraph (i) of subdivision 1 of section 440.10 of the criminal 39 procedure law, as amended by chapter 368 of the laws of 2015 and the 40 opening paragraph of paragraph (i) as amended by chapter 189 of the laws 41 of 2018, is amended 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 person for prostitution or promoting pros- 46 titution) or 230.00 (prostitution) or 230.03 (prostitution in a school 47 zone) of the penal law, and the defendant's participation in the offense 48 was a result of having been a victim of sex trafficking under section 49 230.34 of the penal law, sex trafficking of a child under section 50 230.34-a of the penal law, labor trafficking under section 135.35 of the 51 penal law, aggravated labor trafficking under section 135.37 of the 52 penal law, compelling prostitution under section 230.33 of the penal 53 law, or trafficking in persons under the Trafficking Victims Protection 54 Act (United States Code, title 22, chapter 78); provided that 55 (i) a motion under this paragraph shall be made with due diligence, 56 after the defendant has ceased to be a victim of such trafficking orA. 3436 4 1 compelling prostitution crime or has sought services for victims of such 2 trafficking or compelling prostitution crime, subject to reasonable 3 concerns for the safety of the defendant, family members of the defend- 4 ant, or other victims of such trafficking or compelling prostitution 5 crime that may be jeopardized by the bringing of such motion, or for 6 other reasons consistent with the purpose of this paragraph; and 7 (ii) official documentation of the defendant's status as a victim of 8 trafficking, compelling prostitution or trafficking in persons at the 9 time of the offense from a federal, state or local government agency 10 shall create a presumption that the defendant's participation in the 11 offense was a result of having been a victim of sex trafficking, compel- 12 ling prostitution or trafficking in persons, but shall not be required 13 for granting a motion under this paragraph[.]; 14 (j) The judgment was entered upon a plea of guilty and the court prior 15 thereto failed to advise the defendant prior to accepting a defendant's 16 plea of guilty as required by paragraph (f) of subdivision four of 17 section 170.10, as required by subdivision eight of section 180.10, as 18 required by subdivision four of section 210.15, or as required by subdi- 19 vision seven of section 220.50 of this chapter, provided that the 20 defendant shows that the entry of and acceptance of the plea of guilty 21 may have the consequences for the defendant of deportation, immigration 22 detention, exclusion from admission to the United States, or denial of 23 citizenship pursuant to the laws of the United States. 24 § 8. Section 440.10 of the criminal procedure law is amended by adding 25 a new subdivision 9 to read as follows: 26 9. Upon granting the motion upon the ground, as set forth in paragraph 27 (j) of subdivision one of this section, that the entry of and acceptance 28 of the plea of guilty may have the consequences for the defendant of 29 deportation, immigration detention, exclusion from admission to the 30 United States, or denial of citizenship pursuant to the laws of the 31 United States, the court must vacate the judgment, and permit the with- 32 drawal of the guilty plea. In such event, the entire accusatory instru- 33 ment, as it existed at the time of the plea of guilty, is restored, and 34 the court may take such other action as would be appropriate under 35 subdivision four of this section. 36 § 9. This act shall take effect on the first of November next succeed- 37 ing the date on which it shall have become a law, provided, however, 38 that the amendments to subdivision 7 of section 220.50 of the criminal 39 procedure law made by section five of this act shall not affect the 40 repeal of such subdivision and shall be deemed repealed therewith.
