Bill Text: NY A08404 | 2015-2016 | General Assembly | Introduced
Bill Title: Requires a court advisement of possible immigration consequences, including but not limited to, deportation, immigration detention, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States, to a noncitizen of pleading guilty to a state law offense; 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) 2016-01-06 - referred to codes [A08404 Detail]
Download: New_York-2015-A08404-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8404
2015-2016 Regular Sessions
I N A S S E M B L Y
October 9, 2015
___________
Introduced by M. of A. ORTIZ -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to requiring a
court advisement of possible immigration consequences to a noncitizen
of pleading guilty to a state law offense
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 finds
2 and declares that in many instances involving an individual who is not a
3 citizen of the United States charged with an offense punishable under
4 state law, a plea of guilty is entered without the defendant knowing
5 that a conviction of such offense is grounds for deportation, immi-
6 gration detention, exclusion from admission to the United States, or
7 denial of naturalization pursuant to the laws of the United States.
8 Therefore, it is the intent of the legislature by enacting this act to
9 promote fairness to such accused individuals by requiring in such cases
10 that acceptance of a guilty plea be preceded by an appropriate warning
11 of the special consequences for such a defendant which may result from
12 the plea. It is also the intent of the legislature that the court in
13 such cases shall grant the defendant a reasonable amount of time to
14 negotiate with the prosecutor in the event the defendant or the defend-
15 ant's counsel was unaware of the possibility of deportation, immigration
16 detention, exclusion from admission to the United States, or denial of
17 naturalization as a result of conviction. It is further the intent of
18 the legislature that at the time of the plea no defendant shall be
19 required to disclose his or her legal 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, AT ARRAIGNMENT AND PRIOR TO
24 ACCEPTANCE OF A PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINIS-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03705-01-5
A. 8404 2
1 TERING ANY OTHER WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING
2 ADVISEMENT ON THE RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT
3 OF RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFEND-
4 ANT; "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY
5 ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION
6 OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPOR-
7 TATION, IMMIGRATION DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED
8 STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED
9 STATES." THIS ADVISEMENT SHALL BE GIVEN TO ALL DEFENDANTS AND NO
10 DEFENDANT SHALL BE REQUIRED TO DISCLOSE HIS OR HER LEGAL STATUS IN THE
11 UNITED STATES TO THE COURT.
12 S 3. Section 180.10 of the criminal procedure law is amended by adding
13 a new subdivision 7 to read as follows:
14 7. AT ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE OF A
15 PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY OTHER
16 WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING ADVISEMENT ON THE
17 RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT OF RECORD ON A
18 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
19 NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPT-
20 ANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE OFFENSE FOR
21 WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, IMMIGRATION
22 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
23 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES." THIS ADVISEMENT
24 SHALL BE GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED TO
25 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
26 S 4. Section 210.15 of the criminal procedure law is amended by adding
27 a new subdivision 4 to read as follows:
28 4. AT ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE OF A
29 PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY OTHER
30 WARNING REQUIRED BY LAW, ADMINISTER THE FOLLOWING ADVISEMENT ON THE
31 RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT OF RECORD ON A
32 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
33 NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPT-
34 ANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE OFFENSE FOR
35 WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, IMMIGRATION
36 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
37 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES." THIS ADVISEMENT
38 SHALL BE GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED TO
39 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
40 S 5. Subdivision 7 of section 220.50 of the criminal procedure law, as
41 amended by chapter 738 of the laws of 2004, is amended to read as
42 follows:
43 7. Prior to accepting a defendant's plea of guilty to [a count or
44 counts of an indictment or a superior court information charging a felo-
45 ny offense] ANY OFFENSE PUNISHABLE UNDER STATE LAW, the court must
46 advise the defendant on the record OR IF THE COURT IS NOT A COURT OF
47 RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT,
48 that if the defendant is not a citizen of the United States, the defend-
49 ant's plea of guilty and the court's acceptance thereof may result in
50 the defendant's deportation, IMMIGRATION DETENTION, exclusion from
51 admission to the United States or denial of [naturalization] CITIZENSHIP
52 pursuant to the laws of the United States. Where the plea of guilty is
53 to a count or counts of an indictment charging a felony offense other
54 than a violent felony offense as defined in section 70.02 of the penal
55 law or an A-I felony offense other than an A-I felony as defined in
56 article two hundred twenty of the penal law, the court must also, prior
A. 8404 3
1 to accepting such plea, advise the defendant that, if the defendant is
2 not a citizen of the United States and is or becomes the subject of a
3 final order of deportation issued by the United States Immigration and
4 Naturalization Service, the defendant may be paroled to the custody of
5 the Immigration and Naturalization Service for deportation purposes at
6 any time subsequent to the commencement of any indeterminate or determi-
7 nate prison sentence imposed as a result of the defendant's plea. [The
8 failure to advise the defendant pursuant to this subdivision shall not
9 be deemed to affect the voluntariness of a plea of guilty or the validi-
10 ty of a conviction, nor shall it afford a defendant any rights in a
11 subsequent proceeding relating to such defendant's deportation, exclu-
12 sion or denial of naturalization.] THIS ADVISEMENT SHALL BE GIVEN TO ALL
13 DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED, AT THE TIME OF THE PLEA,
14 TO DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES, TO THE COURT.
15 S 6. Section 220.60 of the criminal procedure law is amended by adding
16 two new subdivisions 5 and 6 to read as follows:
17 5. IF THE COURT FAILS TO MAKE THE ADVISEMENT PRIOR TO ACCEPTING A
18 DEFENDANT'S PLEA OF GUILTY AS REQUIRED BY PARAGRAPH (F) OF SUBDIVISION
19 FOUR OF SECTION 170.10, AS REQUIRED BY SUBDIVISION SEVEN OF SECTION
20 180.10, AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15, OR AS
21 REQUIRED BY SUBDIVISION SEVEN OF SECTION 220.50 OF THIS CHAPTER, AND THE
22 DEFENDANT SHOWS THAT ACCEPTANCE OF THE PLEA OF GUILTY OR CONVICTION OF
23 THE OFFENSE TO WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES
24 FOR THE DEFENDANT OF DEPORTATION, IMMIGRATION DETENTION, EXCLUSION FROM
25 ADMISSION TO THE UNITED STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE
26 LAWS OF THE UNITED STATES, THE COURT, UPON REQUEST OF THE DEFENDANT,
27 SHALL PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY AND ENTER A
28 PLEA OF NOT GUILTY AT ANY TIME BEFORE THE IMPOSITION OF SENTENCE, AND IN
29 SUCH EVENT THE ENTIRE ACCUSATORY INSTRUMENT, AS IT EXISTED AT THE TIME
30 OF THE PLEA OF GUILTY, IS RESTORED.
31 6. A COURT'S FAILURE TO PROVIDE THE ADVISEMENT REQUIRED BY THIS
32 SECTION SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF THE
33 PLEA OR CONSTITUTE GROUNDS FOR FINDING A PRIOR CONVICTION INVALID IF
34 SUCH FAILURE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION.
35 NOTHING IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT IN
36 THE SOUND EXERCISE OF ITS DISCRETION, FROM VACATING A JUDGMENT OR
37 PERMITTING A DEFENDANT TO WITHDRAW A PLEA, ACCORDING TO LAW.
38 S 7. Paragraph (i) of subdivision 1 of section 440.10 of the criminal
39 procedure law, as added by chapter 332 of the laws of 2010, is amended
40 and a new paragraph (j) is added to read as follows:
41 (i) The judgment is a conviction where the arresting charge was under
42 section 240.37 (loitering for the purpose of engaging in a prostitution
43 offense, provided that the defendant was not alleged to be loitering for
44 the purpose of patronizing a prostitute or promoting prostitution) or
45 230.00 (prostitution) of the penal law, and the defendant's partic-
46 ipation in the offense was a result of having been a victim of sex traf-
47 ficking under section 230.34 of the penal law or trafficking in persons
48 under the Trafficking Victims Protection Act (United States Code, title
49 22, chapter 78); provided that
50 (i) a motion under this paragraph shall be made with due diligence,
51 after the defendant has ceased to be a victim of such trafficking or has
52 sought services for victims of such trafficking, subject to reasonable
53 concerns for the safety of the defendant, family members of the defend-
54 ant, or other victims of such trafficking that may be jeopardized by the
55 bringing of such motion, or for other reasons consistent with the
56 purpose of this paragraph; and
A. 8404 4
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[.];
7 (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
8 THERETO FAILED TO ADVISE THE DEFENDANT PRIOR TO ACCEPTING A DEFENDANT'S
9 PLEA OF GUILTY AS REQUIRED BY PARAGRAPH (F) OF SUBDIVISION FOUR OF
10 SECTION 170.10, AS REQUIRED BY SUBDIVISION SEVEN OF SECTION 180.10, AS
11 REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15, OR AS REQUIRED BY SUBDI-
12 VISION SEVEN OF SECTION 220.50 OF THIS CHAPTER, PROVIDED THAT THE
13 DEFENDANT SHOWS THAT THE ENTRY OF AND ACCEPTANCE OF THE PLEA OF GUILTY
14 MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF DEPORTATION, IMMIGRATION
15 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
16 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES.
17 S 8. Section 440.10 of the criminal procedure law is amended by adding
18 a new subdivision 9 to read as follows:
19 9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
20 (J) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE
21 OF THE PLEA OF GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF
22 DEPORTATION, IMMIGRATION DETENTION, EXCLUSION FROM ADMISSION TO THE
23 UNITED STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO THE LAWS OF THE
24 UNITED STATES, THE COURT MUST VACATE THE JUDGMENT, AND PERMIT THE WITH-
25 DRAWAL OF THE GUILTY PLEA. IN SUCH EVENT, THE ENTIRE ACCUSATORY INSTRU-
26 MENT, AS IT EXISTED AT THE TIME OF THE PLEA OF GUILTY, IS RESTORED, AND
27 THE COURT MAY TAKE SUCH OTHER ACTION AS WOULD BE APPROPRIATE UNDER
28 SUBDIVISION FOUR OF THIS SECTION.
29 S 9. This act shall take effect on the first of November next succeed-
30 ing the date on which it shall have become a law, provided, however,
31 that the amendments to subdivision 7 of section 220.50 of the criminal
32 procedure law made by section five of this act shall not affect the
33 repeal of such subdivision and shall be deemed repealed therewith.
