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A05964 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
TITLE OF BILL: An act to amend the penal law and the criminal procedure law, in relation to reducing certain sentences of imprisonment for misdemeanors to three hundred sixty-four days PURPOSE OR GENERAL IDEA OF BILL: An act to amend the penal law, in relation to reducing certain sentences of imprisonment for misdemeanors to three hundred sixty-four days SUMMARY OF PROVISIONS: Section one amends subdivisions 1 of section 70.15 of the Penal Law to reduce by one day, from one year (365 days) to 364 days, the maximum definite sentence of imprisonment that may be imposed for a misdemeanor conviction. A conforming change is made to PL § 70.15 (3), to extend that one day reduction to provisions of law outside the Penal Law that otherwise authorize a misdemeanor sentence of up to one year imprison- ment. Section two adds a new subdivision I-a to Penal Law § 70.15. This subdi- vision extends this one day reduction to misdemeanor sentences of one year imposed before, on or after the effective date of the bill. The change will occur by operation of law; any person sentenced to a period of one year under the former provisions of law would be able to obtain an updated certificate of conviction from the court setting forth such amended sentence. Any sentence for a misdemeanor conviction imposed prior to the effective date of this subdivision that is other than a definite sentence of imprisonment of one year may be set aside. Section three amends subdivision 1 of section 440.10 of the criminal procedure law to include, the judgement is a conviction for a class A or unclassified misdemeanor entered prior to the effective date of this paragraph and satisfies the ground prescribed in paragraph (h) of this subdivision. There shall be a rebuttable presumption that a conviction by plea to such an offense was not knowing and voluntary, based on sever or ongoing collateral consequences, including potential or actual immi- gration consequences and that there shall be a rebuttable presumption that a conviction by verdict constitutes cruel and unusual punishment under section five of article one of the stat constitution based on such consequences. Section four amends Section 440.10 of the criminal procedure law in relation to granting motions, the court may either, vacate the judgement or modify the judgement by reducing it to one of conviction for a lesser offense, with the consent of the people. The court also may vacate the trial wherein the defendant, enters a plea to the same offense in order to permit the court to resentence the defendant in accordance with amen- datory provisions of subdivision one-a of section 70.15 of the penal law. Section five provides the active date. JUSTIFICATION: Because of the way New York's Penal Law interacts with federal immi- gration law, non-citizens, including lawful permanent residents, with recent or long-past criminal charges sometimes face unexpected and undu- ly harsh immigration consequences. One significant concern arises because the maximum potential sentence of imprisonment for conviction of a Class A misdemeanor in New York is one year imprisonment. Under federal immigration law, the potential for a one year sentence can trigger deportation proceedings and removal from the United States in many circumstances, even when the person spent no time in jail at all. Further, an actual sentence of one year in jail for a misdemeanor conviction serves to disqualify New Yorkers in some vulnerable popu- lations from consideration for certain protections, such as asylum (based on a well-founded fear of persecution in the foreign country) and protection from domestic violence. Such a sentence also divests immigration judges, in certain cases, of discretion to consider circumstances that may militate against deporta- tion, such as long-term residence in the U.S., past military service, and others. Unnecessary deportations adversely affect the financial and social systems in New York. When New Yorkers - many of whom have been green card holders for decades - are deported for lesser crimes and denied consideration for immigration relief, families may become dependent on social services and safety net assistance, children may have to forego education, tax revenues decrease, and employers may experience signif- icant difficulties due to a loss of qualified workers. New York is home to one of the most diverse populations in the country. More than twenty percent of New Yorkers are foreign born. Throughout New York's history, immigrant populations have contributed immensely to the economy and the cultural fabric of this state. Rigid immigration consequences in the law should not be countenanced. The modest change in this legislation will assure appropriate discretion for federal immi- gration authorities in certain matters, and help protect this group of non-citizens from arbitrary deportation and the denial of consideration of individual circumstances. LEGISLATIVE HISTORY: Similar Bill - A. 4881 (2017) Crespo FISCAL IMPLICATIONS: NONE EFFECTIVE DATE: Immediately