Requires courts, prior to accepting a plea, to provide notice to the defendant that such plea and the acceptance thereof could result in deportation, removal from the United States, exclusion from the United States or denial of citizenship, if the defendant is not a citizen of the United States.
STATE OF NEW YORK
________________________________________________________________________
5826
2023-2024 Regular Sessions
IN SENATE
March 17, 2023
___________
Introduced by Sens. KAVANAGH, BROUK, HOYLMAN-SIGAL, JACKSON, MYRIE,
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 the
court, prior to accepting a plea, to advise the defendant of the risk
of deportation if he or she is not a citizen
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 7 of section 220.50 of the criminal procedure
2 law, as amended by chapter 738 of the laws of 2004, is amended to read
3 as follows:
4 7. (a) Prior to [accepting a defendant's plea of guilty to a count or
5 counts of an indictment or a superior court information charging a felo-
6 ny offense, the court must advise the defendant on the record, that if
7 the defendant is not a citizen of the United States, the defendant's
8 plea of guilty and the court's acceptance thereof may result in the
9 defendant's deportation, exclusion from admission to the United States
10 or denial of naturalization pursuant to the laws of the United States.
11 Where the plea of guilty is to a count or counts of an indictment charg-
12 ing a felony offense other than a violent felony offense as defined in
13 section 70.02 of the penal law or an A-I felony offense other than an
14 A-I felony as defined in article two hundred twenty of the penal law,
15 the court must also, prior to accepting such plea, advise the defendant
16 that, if the defendant is not a citizen of the United States and is or
17 becomes the subject of a final order of deportation issued by the United
18 States Immigration and Naturalization Service, the defendant may be
19 paroled to the custody of the Immigration and Naturalization Service for
20 deportation purposes at any time subsequent to the commencement of any
21 indeterminate or determinate prison sentence imposed as a result of the
22 defendant's plea. The failure to advise the defendant pursuant to this
23 subdivision shall not be deemed to affect the voluntariness of a plea of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07452-01-3
S. 5826 2
1 guilty or the validity of a conviction, nor shall it afford a defendant
2 any rights in a subsequent proceeding relating to such defendant's
3 deportation, exclusion or denial of naturalization.] the defendant's
4 entry of a plea of guilty to any accusatory instrument in any criminal
5 action, the court shall orally give every defendant on the record the
6 following notification: "If you are not a citizen of the United States,
7 you may become deportable, ineligible for naturalization or inadmissible
8 to the United States based on a conviction by plea or verdict."
9 (i) The court shall notify every defendant in a language that the
10 defendant understands without inquiring about the defendant's citizen-
11 ship or immigration status on the record.
12 (ii) Only the court shall notify defendants about the possibility of
13 deportability, ineligibility for naturalization, or inadmissibility to
14 the United States pursuant to this paragraph. The court and the people
15 shall not make any other statements about immigration consequences,
16 including but not limited to statements regarding likely immigration
17 consequences, condition defendant's guilty plea regardless of immi-
18 gration consequences, or require waiver of any issue or claim related to
19 immigration consequences.
20 (iii) Upon request of the defendant, the court shall allow the defend-
21 ant additional time to secure counsel or consider the appropriateness of
22 the plea following the notification described in this subdivision, with
23 such plea offer remaining open.
24 (iv) Advice regarding immigration consequences given by defense coun-
25 sel does not absolve the court of its independent obligation to give the
26 notice mandated in this subdivision.
27 (v) The notification does not absolve defense counsel of his or her
28 independent obligation to explain the immigration consequences to the
29 defendant.
30 (vi) Nothing in this subdivision shall prohibit a court or the people
31 from considering the immigration status of defendant in accepting entry
32 of a plea, imposing a lower sentence according to law, consenting to a
33 lesser included offense, or filing an additional accusatory instrument.
34 (b) At the time of defendant's arraignment, the court shall also
35 comply with paragraph (a) of this subdivision, though failure to do so
36 does not require vacatur pursuant to paragraph (c) of this subdivision.
37 (c) When a conviction or plea has potential or actual immigration
38 consequences for a defendant, the court's failure to strictly comply
39 with paragraph (a) of this subdivision, on or after the effective date
40 of this subdivision, shall render the plea unknowing, involuntary, and
41 unintelligent, requiring vacatur. The court's failure to have substan-
42 tially complied with paragraph (a) of this subdivision in any non-final
43 criminal prosecution from November nineteenth, two thousand thirteen to
44 the effective date of this subdivision shall render the plea unknowing,
45 involuntary, and unintelligent, requiring vacatur. An application to
46 vacate the judgment or withdraw the defendant's plea of guilty on this
47 basis can be raised either on direct appeal or at any time pursuant to a
48 motion under paragraph (h) of subdivision one of section 440.10 of this
49 chapter.
50 (i) The term "potential or actual immigration consequences" includes
51 but is not limited to the use of the relevant penal law section in any
52 removal proceeding or adjudication under federal immigration law.
53 (ii) All records, papers, and affirmations submitted by the defendant
54 to establish that he or she is not a United States citizen and that the
55 conviction has potential or actual immigration consequences are confi-
56 dential and may not be made available to any person or public or private
S. 5826 3
1 agency, except where specifically required by statute or when so
2 requested by the defendant.
3 (iii) Unless the required notification appears on the record or if no
4 record exists, the defendant shall be presumed to have not received the
5 notification from the court.
6 (iv) This remedy for the court's failure to provide the notification
7 is required notwithstanding any preservation requirement or failure to
8 object by the defendant to the court's failure to give the notification.
9 (v) This remedy for the court's failure to provide the notification is
10 required notwithstanding any prejudice requirement.
11 (d) No court may rely on the existence of a notification given under
12 this subdivision in considering whether a defendant suffered prejudice
13 or received meaningful representation under the constitution of this
14 state. Meaningful representation requires, at minimum, for defense
15 counsel to determine, advise, and negotiate effectively regarding the
16 immigration consequences of a defendant's charges, plea, or conviction.
17 § 2. This act shall take effect on the ninetieth day after it shall
18 have become a law; provided, however, that the amendments to subdivision
19 7 of section 220.50 of the criminal procedure law made by section one of
20 this act shall not affect the repeal of such subdivision and shall be
21 deemed repealed therewith.
