Bill Text: NY A04827 | 2011-2012 | General Assembly | Introduced
Bill Title: Requires a defense attorney to advise a defendant that if he is an alien and he is convicted of a crime, whether by plea or trial, such conviction may result in his 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 3-0)
Status: (Introduced - Dead) 2012-09-04 - enacting clause stricken [A04827 Detail]
Download: New_York-2011-A04827-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 4827 2011-2012 Regular Sessions I N A S S E M B L Y February 8, 2011 ___________ Introduced by M. of A. P. RIVERA -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to requiring an advisement by a defense attorney 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. LBD00017-01-1 A. 4827 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 HIS OR HER ATTORNEY: 4 "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED 5 THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE 6 CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, 7 EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF NATURALIZA- 8 TION PURSUANT TO THE LAWS OF THE UNITED STATES." 9 S 3. Section 180.10 of the criminal procedure law is amended by adding 10 a new subdivision 7 to read as follows: 11 7. UPON ARRAIGNMENT ON A FELONY COMPLAINT, AND PRIOR TO ACCEPTANCE OF 12 A PLEA OF GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN 13 ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTAN- 14 TIALLY THE FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY HIS OR HER 15 ATTORNEY: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY 16 ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION 17 OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTA- 18 TION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF NATUR- 19 ALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES." 20 S 4. Section 210.15 of the criminal procedure law is amended by adding 21 a new subdivision 4 to read as follows: 22 4. UPON ARRAIGNMENT ON AN INDICTMENT, AND PRIOR TO ACCEPTANCE OF A 23 PLEA OF GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN 24 ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTAN- 25 TIALLY THE FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY HIS OR HER 26 ATTORNEY: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY 27 ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION 28 OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTA- 29 TION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF NATUR- 30 ALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES." 31 S 5. Section 220.60 of the criminal procedure law is amended by adding 32 two new subdivisions 5 and 6 to read as follows: 33 5. IF HIS OR HER ATTORNEY FAILS TO ADVISE THE DEFENDANT AS REQUIRED BY 34 PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OR AS REQUIRED BY 35 SUBDIVISION SEVEN OF SECTION 180.10 OR AS REQUIRED BY SUBDIVISION FOUR 36 OF SECTION 210.15 OF THIS CHAPTER, AND THE DEFENDANT SHOWS THAT ACCEPT- 37 ANCE OF THE PLEA OF GUILTY OR CONVICTION OF THE CRIME OR CRIMES TO WHICH 38 DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF 39 DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF 40 NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES, THE COURT, 41 UPON REQUEST OF THE DEFENDANT, SHALL PERMIT THE DEFENDANT TO WITHDRAW 42 THE PLEA OF GUILTY AND ENTER A PLEA OF NOT GUILTY AT ANY TIME BEFORE THE 43 IMPOSITION OF SENTENCE, AND IN SUCH EVENT THE ENTIRE ACCUSATORY INSTRU- 44 MENT, AS IT EXISTED AT THE TIME OF THE PLEA OF GUILTY, IS RESTORED. 45 6. A DEFENSE ATTORNEY'S FAILURE TO PROVIDE THE ADVISEMENT REQUIRED BY 46 THIS SECTION SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF 47 THE PLEA OR CONSTITUTE GROUNDS FOR FINDING A PRIOR CONVICTION INVALID IF 48 SUCH FAILURE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION. 49 NOTHING IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT IN 50 THE SOUND EXERCISE OF ITS DISCRETION, FROM VACATING A JUDGMENT OR 51 PERMITTING A DEFENDANT TO WITHDRAW A PLEA, ACCORDING TO LAW. 52 S 6. Subparagraph (ii) of paragraph (i) of subdivision 1 of section 53 440.10 of the criminal procedure law, as added by chapter 332 of the 54 laws of 2010, is amended and a new paragraph (j) is added to read as 55 follows: A. 4827 3 1 (ii) official documentation of the defendant's status as a victim of 2 sex trafficking or trafficking in persons at the time of the offense 3 from a federal, state or local government agency shall create a presump- 4 tion that the defendant's participation in the offense was a result of 5 having been a victim of sex trafficking or trafficking in persons, but 6 shall not be required for granting a motion under this paragraph[.]; OR 7 (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE DEFENSE 8 ATTORNEY PRIOR THERETO FAILED TO ADVISE THE DEFENDANT AS REQUIRED BY 9 PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OR AS REQUIRED BY 10 SUBDIVISION SEVEN OF SECTION 180.10 OR AS REQUIRED BY SUBDIVISION FOUR 11 OF SECTION 210.15 OF THIS CHAPTER, PROVIDED THAT THE DEFENDANT SHOWS 12 THAT THE ENTRY OF AND ACCEPTANCE OF THE PLEA OF GUILTY MAY HAVE THE 13 CONSEQUENCES FOR THE DEFENDANT OF DEPORTATION, EXCLUSION FROM ADMISSION 14 TO THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS 15 OF THE UNITED STATES. 16 S 7. Section 440.10 of the criminal procedure law is amended by adding 17 a new subdivision 9 to read as follows: 18 9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH 19 (J) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE 20 OF THE PLEA OF GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF 21 DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF 22 NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES, THE COURT MUST 23 ORDER A NEW TRIAL. 24 S 8. The office of court administration shall develop a bill of rights 25 and code of ethics for attorneys on how to advise aliens of the deporta- 26 tion consequences of a plea of guilty to a crime under state law. Such 27 office is authorized and directed to promulgate any rule, regulation or 28 form necessary for the implementation of this section within 180 days 29 after the date on which this act becomes a law. 30 S 9. This act shall take effect on the first of November next succeed- 31 ing the date on which it shall have become a law.