Bill Text: NY A04608 | 2015-2016 | General Assembly | Introduced
Bill Title: Requires a court to advise a defendant that if he or she is an alien and he or she is convicted of a crime, whether by plea or trial, such conviction may result in his or her deportation; 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: Strong Partisan Bill (Democrat 12-1)
Status: (Introduced - Dead) 2016-01-06 - referred to codes [A04608 Detail]
Download: New_York-2015-A04608-Introduced.html
S T A T E O F N E W Y O R K
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4608
2015-2016 Regular Sessions
I N A S S E M B L Y
February 4, 2015
___________
Introduced by M. of A. SEPULVEDA, AUBRY, JAFFEE, ROBINSON, STECK,
RIVERA, CLARK, MOSLEY, RAMOS, CAHILL -- Multi-Sponsored by -- M. of A.
BRENNAN, GOTTFRIED, MONTESANO, PERRY -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to requiring an
advisement by the court regarding the possible consequences to an
alien 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:
1 Section 1. Legislative finding and declaration. The legislature
2 finds and declares that in many instances involving an individual who is
3 not a citizen of the United States charged with an offense punishable as
4 a crime under state law, a plea of guilty is entered without the defend-
5 ant knowing that a conviction of such offense is grounds for deporta-
6 tion, exclusion from admission to the United States, or denial of natur-
7 alization pursuant to the laws of the United States. Therefore, it is
8 the intent of the legislature by enacting this act to promote fairness
9 to such accused individuals by requiring in such cases that acceptance
10 of a guilty plea be preceded by an appropriate warning of the special
11 consequences for such a defendant which may result from the plea. It is
12 also the intent of the legislature that the court in such cases shall
13 grant the defendant a reasonable amount of time to negotiate with the
14 prosecutor in the event the defendant or the defendant's counsel was
15 unaware of the possibility of deportation, exclusion from admission to
16 the United States, or denial of naturalization as a result of
17 conviction. It is further the intent of the legislature that at the time
18 of the plea no defendant shall be required to disclose his or her legal
19 status to the court.
20 S 2. Subdivision 4 of section 170.10 of the criminal procedure law is
21 amended by adding two new paragraphs (f) and (g) to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00380-02-5
A. 4608 2
1 (F) WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
2 INFORMATION OR A MISDEMEANOR COMPLAINT, BEFORE ACCEPTING A PLEA OF GUIL-
3 TY TO ANY OFFENSE PUNISHABLE AS A CRIME UNDER STATE LAW, THE COURT SHALL
4 ADDRESS THE DEFENDANT PERSONALLY IN OPEN COURT, ON THE RECORD, UNDER
5 OATH, INFORMING HIM OR HER OF AND DETERMINING THAT HE OR SHE UNDERSTANDS
6 THE FOLLOWING: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE
7 HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR
8 CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN
9 YOUR DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR
10 DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES."
11 ABSENT A RECORD THAT THE COURT PROVIDED THE ADVISEMENT REQUIRED BY THIS
12 PARAGRAPH, THE DEFENDANT SHALL BE PRESUMED NOT TO HAVE RECEIVED THE
13 REQUIRED ADVISEMENT.
14 (G) UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL TIME
15 TO CONSIDER THE APPROPRIATENESS OF THE PLEA IN LIGHT OF THE ADVISEMENT
16 AS DESCRIBED IN PARAGRAPH (F) OF THIS SUBDIVISION.
17 S 3. Section 180.10 of the criminal procedure law is amended by adding
18 a new subdivision 7 to read as follows:
19 7. BEFORE ACCEPTING A PLEA OF GUILTY TO ANY OFFENSE PUNISHABLE AS A
20 CRIME UNDER STATE LAW, THE COURT SHALL ADDRESS THE DEFENDANT PERSONALLY
21 IN OPEN COURT, ON THE RECORD, UNDER OATH, INFORMING HIM OR HER OF AND
22 DETERMINING THAT HE OR SHE UNDERSTANDS THE FOLLOWING: "IF YOU ARE NOT A
23 CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY
24 THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU
25 HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, EXCLUSION FROM ADMIS-
26 SION TO THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE
27 LAWS OF THE UNITED STATES." ABSENT A RECORD THAT THE COURT PROVIDED THE
28 ADVISEMENT REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL BE PRESUMED
29 NOT TO HAVE RECEIVED THE REQUIRED ADVISEMENT.
30 UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL TIME TO
31 CONSIDER THE APPROPRIATENESS OF THE PLEA IN LIGHT OF THE ADVISEMENT AS
32 DESCRIBED IN PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OF THIS
33 TITLE.
34 S 4. Section 210.15 of the criminal procedure law is amended by adding
35 a new subdivision 4 to read as follows:
36 4. UPON ARRAIGNMENT ON AN INDICTMENT, AND PRIOR TO ACCEPTANCE OF A
37 PLEA OF GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN
38 ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTAN-
39 TIALLY THE FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT
40 AND PLACED UPON THE RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED
41 STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF
42 GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY
43 RESULT IN YOUR DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED
44 STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED
45 STATES." ABSENT A RECORD THAT THE COURT PROVIDED THE ADVISEMENT
46 REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL BE PRESUMED NOT TO
47 HAVE RECEIVED THE REQUIRED ADVISEMENT. IF THE COURT FAILS TO SO ADVISE
48 THE DEFENDANT, AND HE OR SHE LATER AT ANY TIME SHOWS THAT HIS OR HER
49 PLEA AND CONVICTION MAY HAVE OR HAS HAD ONE OF THE ENUMERATED CONSE-
50 QUENCES, EVEN IF THE DEFENDANT HAS ALREADY BEEN DEPORTED FROM THE UNITED
51 STATES, THE COURT, ON THE DEFENDANT'S MOTION, SHALL VACATE THE JUDGMENT
52 AND PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY OR ADMISSION OR
53 SUFFICIENT FACTS, AND ENTER A PLEA OF NOT GUILTY. ABSENT AN OFFICIAL
54 RECORD IN THE COURT FILE THAT THE COURT PROVIDED THE ADVISEMENT AS
55 PRESCRIBED IN THIS SECTION, THE DEFENDANT SHALL BE PRESUMED NOT TO HAVE
56 RECEIVED ADVISEMENT. AN ADVISEMENT PREVIOUSLY OR SUBSEQUENTLY PROVIDED
A. 4608 3
1 TO THE DEFENDANT DURING ANOTHER PLEA COLLOQUY SHALL NOT SATISFY THE
2 ADVISEMENT REQUIRED BY THIS SECTION, NOR SHALL IT BE USED TO PRESUME THE
3 DEFENDANT UNDERSTOOD THE PLEA OF GUILTY, OR ADMISSION TO SUFFICIENT
4 FACTS HE OR SHE SEEKS TO VACATE AND WOULD HAVE THE CONSEQUENCE OF DEPOR-
5 TATION, REMOVAL, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL
6 OF NATURALIZATION. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS
7 PREVENTING THE COURT, IN THE SOUND EXERCISE OF ITS DISCRETION FROM
8 SETTING ASIDE THE JUDGMENT OF CONVICTION AND PERMITTING THE DEFENDANT TO
9 WITHDRAW HIS OR HER PLEA. THE DEFENDANT SHALL NOT BE REQUIRED AT ANY
10 TIME DURING THE PROCEEDINGS OR AT THE TIME OF THE PLEA TO DISCLOSE TO
11 THE COURT HIS OR HER LEGAL STATUS IN THE UNITED STATES.
12 S 5. This act shall take effect on the first of November next succeed-
13 ing the date on which it shall have become a law.
