Amd SS170.10, 180.10, 210.15, 220.60 & 440.10, CP L
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.
STATE OF NEW YORK
________________________________________________________________________
4827
2011-2012 Regular Sessions
IN ASSEMBLY
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 § 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 § 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 § 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 § 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 § 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:
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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 § 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 § 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 § 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.
