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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2189
SPONSOR: Kim TITLE OF BILL: 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
PURPOSE:
The purpose of this bill is to require courts to advise aliens of depor-
tation consequences upon the acceptance of a guilty plea and to allow
aliens to withdraw a guilty plea should such communication not take
place.
SUMMARY OF PROVISIONS:
This legislation amends sections 170.10, 180.10, 210.15, 220.50, 220.60
and 440.10 of the criminal procedure law to provide that prior to
acceptance of a guilty plea by an alien to any felony or misdemeanor
count, the court must advise such person of the grounds for deportation
or denial of naturalization for such guilty plea. This communication
must be recorded in the Court's record and the defendants would not be
required to disclose his or her citizenship or immigration status at the
time of entry of a plea. If the court fails to so advise the defendant,
he or she will have the right to withdraw the guilty plea.
JUSTIFICATION:
Many individuals who are not citizens and are accused of a crime under
State law are not aware of the fact that acceptance of a guilty plea
could constitute grounds for deportation or denial of naturalization.
Allowing guilty pleas taken in ignorance of major consequences consti-
tutes a denial of elementary concepts of fairness and may also consti-
tute a denial of due process.
Immigrant defendants need to be notified during the plea process for
felonies and misdemeanors that pleading guilty may subject them to auto-
matic deportation or denial of naturalization. Under this legislation,
legal residents and immigrants would now have the opportunity to consid-
er the harsh immigration consequences of pleading guilty to a minor
offense, even if doing so would have provided no sentence or a limited
fine.
Several other states have similar statutes or court rules requiring
notification prior to accepting a defendant's plea including: Massachu-
setts, Connecticut, Texas, Florida, California and the District of
Columbia; most of these states allow the plea to be vacated if the
prescribed warning is not given. It is time for New York to follow the
lead of its neighboring states, particularly given the state's large
immigrant population.
Defendants should, at the very least, be made aware that pleading guilty
to even a minor offense could result in their deportation or denial of
naturalization, and should be fully aware of such consequences before
making their decision.
LEGISLATIVE HISTORY:
2005-2006: Referred to Codes (S.2355)
2009-2010: Referred to Codes (S.2254)
2011-2012: Referred to Codes (S. 1018)
2013-2014:(A.7283)(Kim)
2015-2016: (A.2530)(Kim)
1/13/2017 referred to codes
1/03/2018 referred to codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become law, provided, however, that the
amendments to subdivision 7 of section 220.50 of the criminal procedure
law made by section five of this act shall not affect the repeal of such
subdivision and shall be deemed repealed therewith.
STATE OF NEW YORK
________________________________________________________________________
2189
2019-2020 Regular Sessions
IN ASSEMBLY
January 22, 2019
___________
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.
LBD03644-01-9
A. 2189 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. 2189 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 [Naturalization
7 Service] 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 to
12 this subdivision shall not be deemed to affect the voluntariness of a
13 plea of guilty or the validity of a conviction, nor shall it afford a
14 defendant any rights in a subsequent proceeding relating to such defend-
15 ant'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. Subparagraph (ii) of paragraph (i) of subdivision 1 of section
36 440.10 of the criminal procedure law, as amended by chapter 368 of the
37 laws of 2015, is amended and a new paragraph (j) is added to read as
38 follows:
39 (ii) official documentation of the defendant's status as a victim of
40 trafficking, compelling prostitution or trafficking in persons at the
41 time of the offense from a federal, state or local government agency
42 shall create a presumption that the defendant's participation in the
43 offense was a result of having been a victim of sex trafficking, compel-
44 ling prostitution or trafficking in persons, but shall not be required
45 for granting a motion under this paragraph[.];
46 (j) The judgment was entered upon a plea of guilty and the court prior
47 thereto failed to advise the defendant as required by paragraph (f) of
48 subdivision four of section 170.10 or as required by subdivision eight
49 of section 180.10 or as required by subdivision four of section 210.15
50 of this part, provided that the defendant shows that the entry of and
51 acceptance of the plea of guilty may have the consequences for the
52 defendant of deportation, exclusion from admission to the United States,
53 or denial of naturalization pursuant to the laws of the United States.
54 § 8. Section 440.10 of the criminal procedure law is amended by adding
55 a new subdivision 9 to read as follows:
A. 2189 4
1 9. Upon granting the motion upon the ground, as set forth in paragraph
2 (j) of subdivision one of this section, that the entry of and acceptance
3 of the plea of guilty may have the consequences for the defendant of
4 deportation, exclusion from admission to the United States or denial of
5 naturalization pursuant to the laws of the United States, the court
6 shall order a new trial.
7 § 9. The office of court administration shall develop a bill of rights
8 and code of ethics for attorneys on how to advise aliens of the deporta-
9 tion consequences of a plea of guilty to a crime under state law. Such
10 office is authorized and directed to promulgate any rule, regulation or
11 form necessary for the implementation of this section within 180 days
12 after the date on which this act becomes a law.
13 § 10. This act shall take effect on the first of November next
14 succeeding the date on which it shall have become a law, provided,
15 however, that the amendments to subdivision 7 of section 220.50 of the
16 criminal procedure law made by section five of this act shall not affect
17 the repeal of such subdivision and shall be deemed repealed therewith.
