Bill Text: NY S02903 | 2021-2022 | General Assembly | Amended

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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 6-0)

Status: (Vetoed) 2022-12-09 - VETOED MEMO.94 [S02903 Detail]

Download: New_York-2021-S02903-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         2903--A
            Cal. No. 607

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 26, 2021
                                       ___________

        Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes -- reported  favora-
          bly  from  said committee, ordered to first and second report, ordered
          to a third reading, amended and ordered reprinted, retaining its place
          in the order of third reading

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03016-02-1
        S. 2903--A                          2

     1  defendant's plea. The failure to advise the defendant pursuant  to  this
     2  subdivision shall not be deemed to affect the voluntariness of a plea of
     3  guilty  or the validity of a conviction, nor shall it afford a defendant
     4  any  rights  in  a  subsequent  proceeding  relating to such defendant's
     5  deportation, exclusion or denial  of  naturalization.]  the  defendant's
     6  entry  of  a plea of guilty to any accusatory instrument in any criminal
     7  action, the court shall orally give every defendant on  the  record  the
     8  following  notification: "If you are not a citizen of the United States,
     9  you may become deportable, ineligible for naturalization or inadmissible
    10  to the United States based on a conviction by plea or verdict."
    11    (i) The court shall notify every defendant  in  a  language  that  the
    12  defendant  understands  without inquiring about the defendant's citizen-
    13  ship or immigration status on the record.
    14    (ii) Only the court shall notify defendants about the  possibility  of
    15  deportability,  ineligibility  for naturalization, or inadmissibility to
    16  the United States pursuant to this paragraph.  The court and the  people
    17  shall  not  make  any  other  statements about immigration consequences,
    18  including but not limited to  statements  regarding  likely  immigration
    19  consequences,  condition  defendant's  guilty  plea  regardless of immi-
    20  gration consequences, or require waiver of any issue or claim related to
    21  immigration consequences.
    22    (iii) Upon request of the defendant, the court shall allow the defend-
    23  ant additional time to secure counsel or consider the appropriateness of
    24  the plea following the notification described in this subdivision,  with
    25  such plea offer remaining open.
    26    (iv)  Advice regarding immigration consequences given by defense coun-
    27  sel does not absolve the court of its independent obligation to give the
    28  notice mandated in this subdivision.
    29    (v) The notification does not absolve defense counsel of  his  or  her
    30  independent  obligation  to  explain the immigration consequences to the
    31  defendant.
    32    (vi) Nothing in this subdivision shall prohibit a court or the  people
    33  from  considering the immigration status of defendant in accepting entry
    34  of a plea, imposing a lower sentence according to law, consenting  to  a
    35  lesser included offense, or filing an additional accusatory instrument.
    36    (b)  At  the  time  of  defendant's  arraignment, the court shall also
    37  comply with paragraph (a) of this subdivision, though failure to  do  so
    38  does not require vacatur pursuant to paragraph (c) of this subdivision.
    39    (c)  When  a  conviction  or  plea has potential or actual immigration
    40  consequences for a defendant, the court's  failure  to  strictly  comply
    41  with  paragraph  (a) of this subdivision, on or after the effective date
    42  of this subdivision, shall render the plea unknowing,  involuntary,  and
    43  unintelligent,  requiring vacatur.  The court's failure to have substan-
    44  tially complied with paragraph (a) of this subdivision in any  non-final
    45  criminal  prosecution from November nineteenth, two thousand thirteen to
    46  the effective date of this subdivision shall render the plea  unknowing,
    47  involuntary,  and  unintelligent,  requiring  vacatur. An application to
    48  vacate the judgment or withdraw the defendant's plea of guilty  on  this
    49  basis can be raised either on direct appeal or at any time pursuant to a
    50  motion  under paragraph (h) of subdivision one of section 440.10 of this
    51  chapter.
    52    (i) The term "potential or actual immigration  consequences"  includes
    53  but  is  not limited to the use of the relevant penal law section in any
    54  removal proceeding or adjudication under federal immigration law.
    55    (ii) All records, papers, and affirmations submitted by the  defendant
    56  to  establish that he or she is not a United States citizen and that the
        S. 2903--A                          3

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