A03438 Summary:
| BILL NO | A03438 |
| SAME AS | No Same As |
| SPONSOR | Kim |
| COSPNSR | |
| MLTSPNSR | |
| Amd §§170.10, 180.10, 210.15, 220.50, 220.60 & 440.10, CP L | |
| Requires the 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. | |
A03438 Text:
Go to topSTATE OF NEW YORK ________________________________________________________________________ 3438 2021-2022 Regular Sessions IN ASSEMBLY January 26, 2021 ___________ Introduced by M. of A. KIM -- 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 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 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 24 guilty to any crime under state law, the defendant, in addition to any EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06009-01-1A. 3438 2 1 other warning required by law, shall be entitled to substantially the 2 following advisement to be orally administered by the court, on the 3 record in a court of record: "If you are not a citizen of the United 4 States, you are hereby advised that acceptance by the court of a plea of 5 guilty or conviction of the crime for which you have been charged may 6 result in your deportation, exclusion from admission to the United 7 States or denial of naturalization pursuant to the laws of the United 8 States." The defendant shall not be required, at the time of entry of a 9 plea, to disclose to the court his or her citizenship or immigration 10 status. Absent the presence of the advisement required by this para- 11 graph in the record of the proceeding in a court of record, it shall be 12 presumed that the advisement was not administered; and 13 § 3. Section 180.10 of the criminal procedure law is amended by adding 14 a new subdivision 8 to read as follows: 15 8. Upon arraignment on a felony complaint, prior to acceptance of a 16 plea of guilty to any crime under state law, the defendant shall, in 17 addition to any other warning required by law, be entitled to substan- 18 tially the following advisement to be orally administered by the court 19 on the record: "If you are not a citizen of the United States, you are 20 hereby advised that acceptance by the court of a plea of guilty or 21 conviction of the crime for which you have been charged may result in 22 your deportation, exclusion from admission to the United States or 23 denial of naturalization pursuant to the laws of the United States." 24 The defendant shall not be required, at the time of entry of a plea, to 25 disclose to the court his or her citizenship or immigration status. 26 Absent the presence of the advisement required by this subdivision in 27 the record of the proceeding, it shall be presumed that the advisement 28 was not administered. 29 § 4. Section 210.15 of the criminal procedure law is amended by adding 30 a new subdivision 4 to read as follows: 31 4. Upon arraignment on an indictment, prior to acceptance of a plea of 32 guilty to any crime under state law, the defendant shall, in addition to 33 any other warning required by law, be entitled to substantially the 34 following advisement to be orally administered by the court on the 35 record: "If you are not a citizen of the United States, you are hereby 36 advised that acceptance by the court of a plea of guilty or conviction 37 of the crime for which you have been charged may result in your deporta- 38 tion, exclusion from admission to the United States or denial of natur- 39 alization pursuant to the laws of the United States." The defendant 40 shall not be required, at the time of entry of a plea, to disclose to 41 the court his or her citizenship or immigration status. Absent the 42 presence of the advisement required by this subdivision in the record of 43 the proceeding, it shall be presumed that the advisement was not admin- 44 istered. 45 § 5. Subdivision 7 of section 220.50 of the criminal procedure law, as 46 amended by chapter 738 of the laws of 2004, is amended to read as 47 follows: 48 7. Prior to accepting a defendant's plea of guilty to a count or 49 counts of an indictment or a superior court information charging a felo- 50 ny or misdemeanor offense, the court must advise the defendant on the 51 record, that if the defendant is not a citizen of the United States, the 52 defendant's plea of guilty and the court's acceptance thereof may result 53 in the defendant's deportation, exclusion from admission to the United 54 States or denial of naturalization pursuant to the laws of the United 55 States. Where the plea of guilty is to a count or counts of an indict- 56 ment charging a felony or misdemeanor offense other than a violent felo-A. 3438 3 1 ny offense as defined in section 70.02 of the penal law or an A-I felony 2 offense other than an A-I felony as defined in article two hundred twen- 3 ty of the penal law, the court must also, prior to accepting such plea, 4 advise the defendant that, if the defendant is not a citizen of the 5 United States and is or becomes the subject of a final order of deporta- 6 tion issued by [the] United States Immigration and [Naturalization7Service] Customs Enforcement, the defendant may be paroled to the custo- 8 dy of [the] Immigration and [Naturalization Service] Customs Enforcement 9 for deportation purposes at any time subsequent to the commencement of 10 any indeterminate or determinate prison sentence imposed as a result of 11 the defendant's plea. [The failure to advise the defendant pursuant to12this subdivision shall not be deemed to affect the voluntariness of a13plea of guilty or the validity of a conviction, nor shall it afford a14defendant any rights in a subsequent proceeding relating to such defend-15ant's deportation, exclusion or denial of naturalization.] 16 § 6. Section 220.60 of the criminal procedure law is amended by adding 17 two new subdivisions 5 and 6 to read as follows: 18 5. If the court fails to advise the defendant and the defendant shows 19 that acceptance of the plea of guilty or conviction of the crime or 20 crimes to which the defendant pleaded guilty may have the consequences 21 for the defendant of deportation, exclusion from admission to the United 22 States or denial of naturalization pursuant to the laws of the United 23 States, the court, upon request of the defendant, shall permit the 24 defendant to withdraw the plea of guilty and enter a plea of not guilty 25 at any time before the imposition of sentence, and in such event the 26 entire accusatory instrument, as it existed at the time of the plea of 27 guilty, shall be restored. 28 6. A court's failure to provide the advisement required by this 29 section shall not require the vacation of judgment or withdrawal of the 30 plea or constitute grounds for finding a prior conviction invalid if 31 such failure occurred prior to the effective date of this subdivision. 32 Nothing in this chapter, however, shall be deemed to inhibit a court in 33 the sound exercise of its discretion, from vacating a judgment or 34 permitting a defendant to withdraw a plea according to law. 35 § 7. Paragraphs (j) and (k) of subdivision 1 of section 440.10 of the 36 criminal procedure law, paragraph (j) as amended by chapter 131 and 37 paragraph (k) as added by chapter 132 of the laws of 2019, are amended 38 and a new paragraph (1) is added to read as follows: 39 (j) The judgment is a conviction for a class A or unclassified misde- 40 meanor entered prior to the effective date of this paragraph and satis- 41 fies the ground prescribed in paragraph (h) of this subdivision. There 42 shall be a rebuttable presumption that a conviction by plea to such an 43 offense was not knowing, voluntary and intelligent, based on ongoing 44 collateral consequences, including potential or actual immigration 45 consequences, and there shall be a rebuttable presumption that a 46 conviction by verdict constitutes cruel and unusual punishment under 47 section five of article one of the state constitution based on such 48 consequences; [or] 49 (k) The judgment occurred prior to the effective date of this para- 50 graph and is a conviction for an offense as defined in subparagraph (i) 51 or (ii) of paragraph (k) of subdivision three of section 160.50 of this 52 part, in which case the court shall presume that a conviction by plea 53 for the aforementioned offenses was not knowing, voluntary and intelli- 54 gent if it has severe or ongoing consequences, including but not limited 55 to potential or actual immigration consequences, and shall presume that 56 a conviction by verdict for the aforementioned offenses constitutesA. 3438 4 1 cruel and unusual punishment under section five of article one of the 2 state constitution, based on those consequences. The people may rebut 3 these presumptions[.]; or 4 (1) The judgment was entered upon a plea of guilty and the court prior 5 thereto failed to advise the defendant as required by paragraph (f) of 6 subdivision four of section 170.10 or as required by subdivision eight 7 of section 180.10 or as required by subdivision four of section 210.15 8 of this part, provided that the defendant shows that the entry of and 9 acceptance of the plea of guilty may have the consequences for the 10 defendant of deportation, exclusion from admission to the United States, 11 or denial of naturalization pursuant to the laws of the United States. 12 § 8. Section 440.10 of the criminal procedure law is amended by adding 13 a new subdivision 10 to read as follows: 14 10. Upon granting the motion upon the ground, as set forth in para- 15 graph (l) of subdivision one of this section, that the entry of and 16 acceptance of the plea of guilty may have the consequences for the 17 defendant of deportation, exclusion from admission to the United States 18 or denial of naturalization pursuant to the laws of the United States, 19 the court shall order a new trial. 20 § 9. The office of court administration shall develop a bill of rights 21 and code of ethics for attorneys on how to advise aliens of the deporta- 22 tion consequences of a plea of guilty to a crime under state law. Such 23 office is authorized and directed to promulgate any rule, regulation or 24 form necessary for the implementation of this section within 180 days 25 after the date on which this act becomes a law. 26 § 10. This act shall take effect on the first of November next 27 succeeding the date on which it shall have become a law, provided, 28 however, that the amendments to subdivision 7 of section 220.50 of the 29 criminal procedure law made by section five of this act shall not affect 30 the repeal of such subdivision and shall be deemed repealed therewith.