S T A T E O F N E W Y O R K ________________________________________________________________________ 116 2013-2014 Regular Sessions I N S E N A T E (PREFILED) January 9, 2013 ___________ Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to requiring an advisement by a 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 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, PRIOR TO ACCEPTANCE OF A PLEA OF EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00349-01-3 S. 116 2 1 GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT, IN ADDITION TO ANY 2 OTHER WARNING REQUIRED BY LAW, SHALL BE ENTITLED TO SUBSTANTIALLY THE 3 FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT, ON THE 4 RECORD IN A COURT OF RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED 5 STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF 6 GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY 7 RESULT IN YOUR DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED 8 STATES OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED 9 STATES." THE DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A 10 PLEA, TO DISCLOSE TO THE COURT HIS OR HER CITIZENSHIP OR IMMIGRATION 11 STATUS. ABSENT THE PRESENCE OF THE ADVISEMENT REQUIRED BY THIS PARA- 12 GRAPH IN THE RECORD OF THE PROCEEDING IN A COURT OF RECORD, IT SHALL BE 13 PRESUMED THAT THE ADVISEMENT WAS NOT ADMINISTERED. 14 S 3. Section 180.10 of the criminal procedure law is amended by adding 15 a new subdivision 7 to read as follows: 16 7. UPON ARRAIGNMENT ON A FELONY COMPLAINT, PRIOR TO ACCEPTANCE OF A 17 PLEA OF GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN 18 ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTAN- 19 TIALLY THE FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT 20 ON THE RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE 21 HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR 22 CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN 23 YOUR DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR 24 DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES." 25 THE DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A PLEA, TO 26 DISCLOSE TO THE COURT HIS OR HER CITIZENSHIP OR IMMIGRATION STATUS. 27 ABSENT THE PRESENCE OF THE ADVISEMENT REQUIRED BY THIS SUBDIVISION IN 28 THE RECORD OF THE PROCEEDING, IT SHALL BE PRESUMED THAT THE ADVISEMENT 29 WAS NOT ADMINISTERED. 30 S 4. Section 210.15 of the criminal procedure law is amended by adding 31 a new subdivision 4 to read as follows: 32 4. UPON ARRAIGNMENT ON AN INDICTMENT, PRIOR TO ACCEPTANCE OF A PLEA OF 33 GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN ADDITION TO 34 ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTANTIALLY THE 35 FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT ON THE 36 RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY 37 ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION 38 OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTA- 39 TION, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL OF NATUR- 40 ALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES." THE DEFENDANT 41 SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A PLEA, TO DISCLOSE TO 42 THE COURT HIS OR HER CITIZENSHIP OR IMMIGRATION STATUS. ABSENT THE 43 PRESENCE OF THE ADVISEMENT REQUIRED BY THIS SUBDIVISION IN THE RECORD OF 44 THE PROCEEDING, IT SHALL BE PRESUMED THAT THE ADVISEMENT WAS NOT ADMIN- 45 ISTERED. 46 S 5. Subdivision 7 of section 220.50 of the criminal procedure law, as 47 amended by chapter 738 of the laws of 2004, is amended to read as 48 follows: 49 7. Prior to accepting a defendant's plea of guilty to a count or 50 counts of an indictment or a superior court information charging a felo- 51 ny OR MISDEMEANOR offense, the court must advise the defendant on the 52 record, that if the defendant is not a citizen of the United States, the 53 defendant's plea of guilty and the court's acceptance thereof may result 54 in the defendant's deportation, exclusion from admission to the United 55 States or denial of naturalization pursuant to the laws of the United 56 States. Where the plea of guilty is to a count or counts of an indict- S. 116 3 1 ment charging a felony OR MISDEMEANOR offense other than a violent felo- 2 ny offense as defined in section 70.02 of the penal law or an A-I felony 3 offense other than an A-I felony as defined in article two hundred twen- 4 ty of the penal law, the court must also, prior to accepting such plea, 5 advise the defendant that, if the defendant is not a citizen of the 6 United States and is or becomes the subject of a final order of deporta- 7 tion issued by [the] United States Immigration and [Naturalization 8 Service] CUSTOMS ENFORCEMENT, the defendant may be paroled to the custo- 9 dy of [the] Immigration and [Naturalization Service] CUSTOMS ENFORCEMENT 10 for deportation purposes at any time subsequent to the commencement of 11 any indeterminate or determinate prison sentence imposed as a result of 12 the defendant's plea. [The failure to advise the defendant pursuant to 13 this subdivision shall not be deemed to affect the voluntariness of a 14 plea of guilty or the validity of a conviction, nor shall it afford a 15 defendant any rights in a subsequent proceeding relating to such defend- 16 ant's deportation, exclusion or denial of naturalization.] 17 S 6. Section 220.60 of the criminal procedure law is amended by adding 18 two new subdivisions 5 and 6 to read as follows: 19 5. IF THE COURT FAILS TO ADVISE THE DEFENDANT AND THE DEFENDANT SHOWS 20 THAT ACCEPTANCE OF THE PLEA OF GUILTY OR CONVICTION OF THE CRIME OR 21 CRIMES TO WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES FOR 22 THE DEFENDANT OF DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED 23 STATES OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED 24 STATES, THE COURT, UPON REQUEST OF THE DEFENDANT, SHALL PERMIT THE 25 DEFENDANT TO WITHDRAW THE PLEA OF GUILTY AND ENTER A PLEA OF NOT GUILTY 26 AT ANY TIME BEFORE THE IMPOSITION OF SENTENCE, AND IN SUCH EVENT THE 27 ENTIRE ACCUSATORY INSTRUMENT, AS IT EXISTED AT THE TIME OF THE PLEA OF 28 GUILTY, SHALL BE RESTORED. 29 6. A COURT'S FAILURE TO PROVIDE THE ADVISEMENT REQUIRED BY THIS 30 SECTION SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF THE 31 PLEA OR CONSTITUTE GROUNDS FOR FINDING A PRIOR CONVICTION INVALID IF 32 SUCH FAILURE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION. 33 NOTHING IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT IN 34 THE SOUND EXERCISE OF ITS DISCRETION, FROM VACATING A JUDGMENT OR 35 PERMITTING A DEFENDANT TO WITHDRAW A PLEA ACCORDING TO LAW. 36 S 7. Paragraph (i) of subdivision 1 of section 440.10 of the criminal 37 procedure law, as added by chapter 332 of the laws of 2010, is amended 38 and a new paragraph (j) is added to read as follows: 39 (i) The judgment is a conviction where the arresting charge was under 40 section 240.37 (loitering for the purpose of engaging in a prostitution 41 offense, provided that the defendant was not alleged to be loitering for 42 the purpose of patronizing a prostitute or promoting prostitution) or 43 230.00 (prostitution) of the penal law, and the defendant's partic- 44 ipation in the offense was a result of having been a victim of sex traf- 45 ficking under section 230.34 of the penal law or trafficking in persons 46 under the Trafficking Victims Protection Act (United States Code, title 47 22, chapter 78); provided that 48 (i) a motion under this paragraph shall be made with due diligence, 49 after the defendant has ceased to be a victim of such trafficking or has 50 sought services for victims of such trafficking, subject to reasonable 51 concerns for the safety of the defendant, family members of the defend- 52 ant, or other victims of such trafficking that may be jeopardized by the 53 bringing of such motion, or for other reasons consistent with the 54 purpose of this paragraph; and 55 (ii) official documentation of the defendant's status as a victim of 56 sex trafficking or trafficking in persons at the time of the offense S. 116 4 1 from a federal, state or local government agency shall create a presump- 2 tion that the defendant's participation in the offense was a result of 3 having been a victim of sex trafficking or trafficking in persons, but 4 shall not be required for granting a motion under this paragraph[.]; 5 (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR 6 THERETO FAILED TO ADVISE THE DEFENDANT AS REQUIRED BY PARAGRAPH (F) OF 7 SUBDIVISION FOUR OF SECTION 170.10 OR AS REQUIRED BY SUBDIVISION SEVEN 8 OF SECTION 180.10 OR AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15 9 OF THIS CHAPTER, PROVIDED THAT THE DEFENDANT SHOWS THAT THE ENTRY OF AND 10 ACCEPTANCE OF THE PLEA OF GUILTY MAY HAVE THE CONSEQUENCES FOR THE 11 DEFENDANT OF DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, 12 OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. 13 S 8. Section 440.10 of the criminal procedure law is amended by adding 14 a new subdivision 9 to read as follows: 15 9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH 16 (J) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE 17 OF THE PLEA OF GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF 18 DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL OF 19 NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES, THE COURT 20 SHALL ORDER A NEW TRIAL. 21 S 9. The office of court administration shall develop a bill of rights 22 and code of ethics for attorneys on how to advise aliens of the deporta- 23 tion consequences of a plea of guilty to a crime under state law. Such 24 office is authorized and directed to promulgate any rule, regulation or 25 form necessary for the implementation of this section within 180 days 26 after the date on which this act becomes a law. 27 S 10. This act shall take effect on the first of November next 28 succeeding the date on which it shall have become a law, provided, 29 however, that the amendments to subdivision 7 of section 220.50 of the 30 criminal procedure law made by section five of this act shall not affect 31 the repeal of such subdivision and shall be deemed repealed therewith.