Bill Text: NY S08692 | 2017-2018 | 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: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-05-10 - REFERRED TO CODES [S08692 Detail]
Download: New_York-2017-S08692-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8692 IN SENATE May 10, 2018 ___________ Introduced by Sen. SEPULVEDA -- 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 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 § 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: 22 (f) Where the accusatory instrument is an information, a prosecutor's 23 information or a misdemeanor complaint, before accepting a plea of guil- 24 ty to any offense punishable as a crime under state law, the court shall 25 address the defendant personally in open court, on the record, under 26 oath, informing him or her of and determining that he or she understands 27 the following: "If you are not a citizen of the United States, you are EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07358-01-7S. 8692 2 1 hereby advised that acceptance by the court of a plea of guilty or 2 conviction of the crime for which you have been charged may result in 3 your deportation, exclusion from admission to the United States, or 4 denial of naturalization pursuant to the laws of the United States." 5 Absent a record that the court provided the advisement required by this 6 paragraph, the defendant shall be presumed not to have received the 7 required advisement. 8 (g) Upon request, the court shall allow the defendant additional time 9 to consider the appropriateness of the plea in light of the advisement 10 as described in paragraph (f) of this subdivision. 11 § 3. Section 180.10 of the criminal procedure law is amended by adding 12 a new subdivision 8 to read as follows: 13 8. Before accepting a plea of guilty to any offense punishable as a 14 crime under state law, the court shall address the defendant personally 15 in open court, on the record, under oath, informing him or her of and 16 determining that he or she understands the following: "If you are not a 17 citizen of the United States, you are hereby advised that acceptance by 18 the court of a plea of guilty or conviction of the crime for which you 19 have been charged may result in your deportation, exclusion from admis- 20 sion to the United States, or denial of naturalization pursuant to the 21 laws of the United States." Absent a record that the court provided the 22 advisement required by this subdivision, the defendant shall be presumed 23 not to have received the required advisement. 24 Upon request, the court shall allow the defendant additional time to 25 consider the appropriateness of the plea in light of the advisement as 26 described in paragraph (f) of subdivision four of section 170.10 of this 27 title. 28 § 4. Section 210.15 of the criminal procedure law is amended by adding 29 a new subdivision 4 to read as follows: 30 4. Upon arraignment on an indictment, and prior to acceptance of a 31 plea of guilty to any crime under state law, the defendant shall, in 32 addition to any other warning required by law, be entitled to substan- 33 tially the following advisement to be orally administered by the court 34 and placed upon the record: "If you are not a citizen of the United 35 States, you are hereby advised that acceptance by the court of a plea of 36 guilty or conviction of the crime for which you have been charged may 37 result in your deportation, exclusion from admission to the United 38 States, or denial of naturalization pursuant to the laws of the United 39 States." Absent a record that the court provided the advisement 40 required by this subdivision, the defendant shall be presumed not to 41 have received the required advisement. If the court fails to so advise 42 the defendant, and he or she later at any time shows that his or her 43 plea and conviction may have or has had one of the enumerated conse- 44 quences, even if the defendant has already been deported from the United 45 States, the court, on the defendant's motion, shall vacate the judgment 46 and permit the defendant to withdraw the plea of guilty or admission or 47 sufficient facts, and enter a plea of not guilty. Absent an official 48 record in the court file that the court provided the advisement as 49 prescribed in this section, the defendant shall be presumed not to have 50 received advisement. An advisement previously or subsequently provided 51 to the defendant during another plea colloquy shall not satisfy the 52 advisement required by this section, nor shall it be used to presume the 53 defendant understood the plea of guilty, or admission to sufficient 54 facts he or she seeks to vacate and would have the consequence of depor- 55 tation, removal, exclusion from admission to the United States or denial 56 of naturalization. Nothing in this section shall be construed asS. 8692 3 1 preventing the court, in the sound exercise of its discretion from 2 setting aside the judgment of conviction and permitting the defendant to 3 withdraw his or her plea. The defendant shall not be required at any 4 time during the proceedings or at the time of the plea to disclose to 5 the court his or her legal status in the United States. 6 § 5. This act shall take effect on the first of November next succeed- 7 ing the date on which it shall have become a law.
