A01863 Summary:
| BILL NO | A01863 |
| SAME AS | No Same As |
| SPONSOR | Kim |
| COSPNSR | Hyndman, Aubry, Simon, Forrest, Walker |
| MLTSPNSR | Ramos |
| 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 a noncitizen resident 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 a noncitizen resident if such noncitizen resident is threatened with deportation and such noncitizen resident is not so advised of such threat of deportation. | |
A01863 Actions:
| BILL NO | A01863 | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/23/2023 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/03/2024 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
A01863 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 criminal procedure law, in relation to requiring an advisement by a court regarding the possible consequences to a nonciti- zen resident of the acceptance of a plea of guilty to a crime under state law PURPOSE OR GENERAL IDEA OF BILL: 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. DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): Click hereto enter text. 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. PRIOR 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 FOR STATE AND LOCAL GOVERNMENTS: 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.
A01863 Text:
Go to topSTATE OF NEW YORK ________________________________________________________________________ 1863 2023-2024 Regular Sessions IN ASSEMBLY January 23, 2023 ___________ 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 a noncit- izen resident 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 finds 2 and declares that in many instances involving an individual who is not a 3 citizen of the United States charged with an offense punishable as a 4 crime under state law, a plea of guilty is entered without the defendant 5 knowing that a conviction of such offense is grounds for deportation, 6 exclusion from admission to the United States, or denial of naturaliza- 7 tion pursuant to the laws of the United States. Therefore, it is the 8 intent of the legislature by enacting this act to promote fairness to 9 such accused individuals by requiring in such cases that acceptance of a 10 guilty plea be preceded by an appropriate warning of the special conse- 11 quences for such a defendant which may result from the plea. It is also 12 the intent of the legislature that the court in such cases shall grant 13 the defendant a reasonable amount of time to negotiate with the prosecu- 14 tor in the event the defendant or the defendant's counsel was unaware of 15 the possibility of deportation, exclusion from admission to the United 16 States, or denial of naturalization as a result of conviction. It is 17 further the intent of the legislature that at the time of the plea no 18 defendant shall be required to disclose his or her legal status to the 19 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. LBD06080-01-3A. 1863 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 the court, on the 4 record in a court of record: "If you are not a citizen of the United 5 States, you are hereby advised that acceptance by the court of a plea of 6 guilty or conviction of the crime for which you have been charged may 7 result in your deportation, exclusion from admission to the United 8 States or denial of naturalization pursuant to the laws of the United 9 States." The defendant shall not be required, at the time of entry of a 10 plea, to disclose to the court his or her citizenship or immigration 11 status. Absent the presence of the advisement required by this para- 12 graph in the record of the proceeding in a court of record, it shall be 13 presumed that the advisement was not administered; and 14 § 3. Section 180.10 of the criminal procedure law is amended by adding 15 a new subdivision 8 to read as follows: 16 8. Upon arraignment on a felony complaint, prior to acceptance of a 17 plea of guilty to any crime under state law, the defendant shall, in 18 addition to any other warning required by law, be entitled to substan- 19 tially the following advisement to be orally administered by the court 20 on the record: "If you are not a citizen of the United States, you are 21 hereby advised that acceptance by the court of a plea of guilty or 22 conviction of the crime for which you have been charged may result in 23 your deportation, exclusion from admission to the United States or 24 denial of naturalization pursuant to the laws of the United States." 25 The defendant shall not be required, at the time of entry of a plea, to 26 disclose to the court his or her citizenship or immigration status. 27 Absent the presence of the advisement required by this subdivision in 28 the record of the proceeding, it shall be presumed that the advisement 29 was not administered. 30 § 4. Section 210.15 of the criminal procedure law is amended by adding 31 a new subdivision 4 to read as follows: 32 4. Upon arraignment on an indictment, prior to acceptance of a plea of 33 guilty to any crime under state law, the defendant shall, in addition to 34 any other warning required by law, be entitled to substantially the 35 following advisement to be orally administered by the court on the 36 record: "If you are not a citizen of the United States, you are hereby 37 advised that acceptance by the court of a plea of guilty or conviction 38 of the crime for which you have been charged may result in your deporta- 39 tion, exclusion from admission to the United States or denial of natur- 40 alization pursuant to the laws of the United States." The defendant 41 shall not be required, at the time of entry of a plea, to disclose to 42 the court his or her citizenship or immigration status. Absent the 43 presence of the advisement required by this subdivision in the record of 44 the proceeding, it shall be presumed that the advisement was not admin- 45 istered. 46 § 5. Subdivision 7 of section 220.50 of the criminal procedure law, as 47 amended by chapter 738 of the laws of 2004, is amended to read as 48 follows: 49 7. Prior to accepting a defendant's plea of guilty to a count or 50 counts of an indictment or a superior court information charging a felo- 51 ny or misdemeanor offense, the court must advise the defendant on the 52 record, that if the defendant is not a citizen of the United States, the 53 defendant's plea of guilty and the court's acceptance thereof may result 54 in the defendant's deportation, exclusion from admission to the United 55 States or denial of naturalization pursuant to the laws of the United 56 States. Where the plea of guilty is to a count or counts of an indict-A. 1863 3 1 ment charging a felony or misdemeanor offense other than a violent felo- 2 ny offense as defined in section 70.02 of the penal law or an A-I felony 3 offense other than an A-I felony as defined in article two hundred twen- 4 ty of the penal law, the court must also, prior to accepting such plea, 5 advise the defendant that, if the defendant is not a citizen of the 6 United States and is or becomes the subject of a final order of deporta- 7 tion issued by [the] United States Immigration and [Naturalization8Service] Customs Enforcement, the defendant may be paroled to the custo- 9 dy of [the] Immigration and [Naturalization Service] Customs Enforcement 10 for deportation purposes at any time subsequent to the commencement of 11 any indeterminate or determinate prison sentence imposed as a result of 12 the defendant's plea. [The failure to advise the defendant pursuant to13this subdivision shall not be deemed to affect the voluntariness of a14plea of guilty or the validity of a conviction, nor shall it afford a15defendant any rights in a subsequent proceeding relating to such defend-16ant's deportation, exclusion or denial of naturalization.] 17 § 6. Section 220.60 of the criminal procedure law is amended by adding 18 two new subdivisions 5 and 6 to read as follows: 19 5. If the court fails to advise the defendant and the defendant shows 20 that acceptance of the plea of guilty or conviction of the crime or 21 crimes to which the defendant pleaded guilty may have the consequences 22 for the defendant of deportation, exclusion from admission to the United 23 States or denial of naturalization pursuant to the laws of the United 24 States, the court, upon request of the defendant, shall permit the 25 defendant to withdraw the plea of guilty and enter a plea of not guilty 26 at any time before the imposition of sentence, and in such event the 27 entire accusatory instrument, as it existed at the time of the plea of 28 guilty, shall be restored. 29 6. A court's failure to provide the advisement required by this 30 section shall not require the vacation of judgment or withdrawal of the 31 plea or constitute grounds for finding a prior conviction invalid if 32 such failure occurred prior to the effective date of this subdivision. 33 Nothing in this chapter, however, shall be deemed to inhibit a court in 34 the sound exercise of its discretion, from vacating a judgment or 35 permitting a defendant to withdraw a plea according to law. 36 § 7. Paragraphs (j) and (k) of subdivision 1 of section 440.10 of the 37 criminal procedure law, paragraph (j) as amended by chapter 131 of the 38 laws of 2019 and paragraph (k) as amended by chapter 92 of the laws of 39 2021, are amended and a new paragraph (l) is added to read as follows: 40 (j) The judgment is a conviction for a class A or unclassified misde- 41 meanor entered prior to the effective date of this paragraph and satis- 42 fies the ground prescribed in paragraph (h) of this subdivision. There 43 shall be a rebuttable presumption that a conviction by plea to such an 44 offense was not knowing, voluntary and intelligent, based on ongoing 45 collateral consequences, including potential or actual immigration 46 consequences, and there shall be a rebuttable presumption that a 47 conviction by verdict constitutes cruel and unusual punishment under 48 section five of article one of the state constitution based on such 49 consequences; [or] 50 (k) The judgment occurred prior to the effective date of the laws of 51 two thousand twenty-one that amended this paragraph and is a conviction 52 for an offense as defined in subparagraphs (i), (ii), (iii) or (iv) of 53 paragraph (k) of subdivision three of section 160.50 of this part, in 54 which case the court shall presume that a conviction by plea for the 55 aforementioned offenses was not knowing, voluntary and intelligent if it 56 has severe or ongoing consequences, including but not limited to poten-A. 1863 4 1 tial or actual immigration consequences, and shall presume that a 2 conviction by verdict for the aforementioned offenses constitutes cruel 3 and unusual punishment under section five of article one of the state 4 constitution, based on those consequences. The people may rebut these 5 presumptions[.]; or 6 (1) The judgment was entered upon a plea of guilty and the court prior 7 thereto failed to advise the defendant as required by paragraph (f) of 8 subdivision four of section 170.10 or as required by subdivision eight 9 of section 180.10 or as required by subdivision four of section 210.15 10 of this part, provided that the defendant shows that the entry of and 11 acceptance of the plea of guilty may have the consequences for the 12 defendant of deportation, exclusion from admission to the United States, 13 or denial of naturalization pursuant to the laws of the United States. 14 § 8. Section 440.10 of the criminal procedure law is amended by adding 15 a new subdivision 10 to read as follows: 16 10. Upon granting the motion upon the ground, as set forth in para- 17 graph (l) of subdivision one of this section, that the entry of and 18 acceptance of the plea of guilty may have the consequences for the 19 defendant of deportation, exclusion from admission to the United States 20 or denial of naturalization pursuant to the laws of the United States, 21 the court shall order a new trial. 22 § 9. The office of court administration shall develop a bill of rights 23 and code of ethics for attorneys on how to advise noncitizen residents 24 of the deportation consequences of a plea of guilty to a crime under 25 state law. Such office is authorized and directed to promulgate any 26 rule, regulation or form necessary for the implementation of this 27 section within 180 days after the date on which this act becomes a law. 28 § 10. This act shall take effect on the first of November next 29 succeeding the date on which it shall have become a law, provided, 30 however, that the amendments to subdivision 7 of section 220.50 of the 31 criminal procedure law made by section five of this act shall not affect 32 the repeal of such subdivision and shall be deemed repealed therewith.