NY State Senate Bill 2009-S2254

Senate Bill S2254

2009-2010 Legislative Session

Requires the court to advise aliens of deportation consequences of guilty plea; allows guilty plea withdrawal

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Feb 17, 2009	referred to codes

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2009-S2254 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§170.10, 180.10, 210.15, 220.50, 220.60 & 440.10, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1018
2013-2014: S116
2015-2016: S1300
2017-2018: S461

2009-S2254 (ACTIVE) - Summary

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.

2009-S2254 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2254

 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
deportation consequences upon on the acceptance of a guilty plea and
to allow aliens to withdraw a guilty plea should such advisal 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 advisal 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
constitutes a denial of elementary concepts of fairness and may also
constitute 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
automatic deportation or denial of naturalization. Under this
legislation, legal residents and immigrants would now have the
opportunity to consider the harsh immigration consequences of pleading
guilty to a minor offense, even if doing so would have provided no
sentence or a limited fine.

Over nine other states have similar statutes or court rules requiring
notification prior to accepting a defendant's plea, including:
Massachusetts, 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 Referred to Codes(S.2355)
2006 Referred to Codes(S.2355)

 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.

2009-S2254 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2254

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced  by Sens. SCHNEIDERMAN, ADAMS, BRESLIN, DIAZ, DUANE, KRUEGER,
  MONSERRATE, PARKER, SAMPSON, THOMPSON -- read twice and ordered print-
  ed, and when printed to be committed 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:

  Section  1.    Legislative  finding and declaration.   The legislature
finds and declares that in many instances involving an individual who is
not a citizen of the United States charged with an offense punishable as
a crime under state law, a plea of guilty is entered without the defend-
ant knowing that a conviction of such offense is  grounds  for  deporta-
tion, exclusion from admission to the United States, or denial of natur-
alization  pursuant  to the laws of the United States.  Therefore, it is
the intent of the legislature by enacting this act to  promote  fairness
to  such  accused individuals by requiring in such cases that acceptance
of a guilty plea be preceded by an appropriate warning  of  the  special
consequences for such a defendant which may result from the plea.  It is
also  the  intent  of the legislature that the court in such cases shall
grant the defendant a reasonable amount of time to  negotiate  with  the
prosecutor  in  the  event  the defendant or the defendant's counsel was
unaware of the possibility of deportation, exclusion from  admission  to
the   United  States,  or  denial  of  naturalization  as  a  result  of
conviction. It is further the intent of the legislature that at the time
of the plea no defendant shall be required to disclose his or her  legal
status to the court.
  S 2.  Subdivision 4 of section 170.10 of the criminal procedure law is
amended by adding a new paragraph (e) to read as follows:
  (E)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
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.
                                                           LBD03617-01-9

S. 2254                             2

GUILTY  TO  ANY CRIME UNDER STATE LAW, THE DEFENDANT, IN ADDITION TO ANY
OTHER WARNING REQUIRED BY LAW, SHALL BE ENTITLED  TO  SUBSTANTIALLY  THE
FOLLOWING  ADVISEMENT  TO  BE  ORALLY  ADMINISTERED BY THE COURT, ON THE
RECORD  IN  A  COURT  OF RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED
STATES, YOU ARE HEREBY ADVISED THAT ACCEPTANCE BY THE COURT OF A PLEA OF
GUILTY OR CONVICTION OF THE CRIME FOR WHICH YOU HAVE  BEEN  CHARGED  MAY
RESULT  IN  YOUR  DEPORTATION,  EXCLUSION  FROM  ADMISSION TO THE UNITED
STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF  THE  UNITED
STATES."  THE DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A
PLEA,  TO  DISCLOSE  TO  THE COURT HIS OR HER CITIZENSHIP OR IMMIGRATION
STATUS.  ABSENT THE PRESENCE OF THE ADVISEMENT REQUIRED  BY  THIS  PARA-
GRAPH  IN THE RECORD OF THE PROCEEDING IN A COURT OF RECORD, IT SHALL BE
PRESUMED THAT THE ADVISEMENT WAS NOT ADMINISTERED.
  S 3. Section 180.10 of the criminal procedure law is amended by adding
a new subdivision 7 to read as follows:
  7. UPON ARRAIGNMENT ON A FELONY COMPLAINT, AND PRIOR TO ACCEPTANCE  OF
A  PLEA  OF GUILTY TO ANY CRIME UNDER STATE LAW, THE DEFENDANT SHALL, IN
ADDITION TO ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED  TO  SUBSTAN-
TIALLY  THE  FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY THE COURT
ON THE RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES,  YOU  ARE
HEREBY  ADVISED  THAT  ACCEPTANCE  BY  THE  COURT OF A PLEA OF GUILTY OR
CONVICTION OF THE CRIME FOR WHICH YOU HAVE BEEN CHARGED  MAY  RESULT  IN
YOUR  DEPORTATION,  EXCLUSION  FROM  ADMISSION  TO THE UNITED STATES, OR
DENIAL OF NATURALIZATION PURSUANT TO THE LAWS  OF  THE  UNITED  STATES."
THE  DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A PLEA, TO
DISCLOSE TO THE COURT HIS OR  HER  CITIZENSHIP  OR  IMMIGRATION  STATUS.
ABSENT  THE  PRESENCE  OF THE ADVISEMENT REQUIRED BY THIS SUBDIVISION IN
THE RECORD OF THE PROCEEDING, IT SHALL BE PRESUMED THAT  THE  ADVISEMENT
WAS NOT ADMINISTERED.
  S 4. Section 210.15 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4.  UPON  ARRAIGNMENT  ON  AN INDICTMENT, AND PRIOR TO ACCEPTANCE OF A
PLEA OF GUILTY TO ANY CRIME UNDER STATE LAW,  THE  DEFENDANT  SHALL,  IN
ADDITION  TO  ANY OTHER WARNING REQUIRED BY LAW, BE ENTITLED TO SUBSTAN-
TIALLY THE FOLLOWING ADVISEMENT TO BE ORALLY ADMINISTERED BY  THE  COURT
ON  THE  RECORD: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES, YOU ARE
HEREBY ADVISED THAT ACCEPTANCE BY THE COURT  OF  A  PLEA  OF  GUILTY  OR
CONVICTION  OF  THE  CRIME FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN
YOUR DEPORTATION, EXCLUSION FROM ADMISSION  TO  THE  UNITED  STATES,  OR
DENIAL  OF  NATURALIZATION  PURSUANT  TO THE LAWS OF THE UNITED STATES."
THE DEFENDANT SHALL NOT BE REQUIRED, AT THE TIME OF ENTRY OF A PLEA,  TO
DISCLOSE  TO  THE  COURT  HIS  OR HER CITIZENSHIP OR IMMIGRATION STATUS.
ABSENT THE PRESENCE OF THE ADVISEMENT REQUIRED BY  THIS  SUBDIVISION  IN
THE  RECORD  OF THE PROCEEDING, IT SHALL BE PRESUMED THAT THE ADVISEMENT
WAS NOT ADMINISTERED.
  S 5. Subdivision 7 of section 220.50 of the criminal procedure law, as
amended by chapter 738 of the laws  of  2004,  is  amended  to  read  as
follows:
  7.  Prior  to  accepting  a  defendant's  plea of guilty to a count or
counts of an indictment or a superior court information charging a felo-
ny OR MISDEMEANOR offense, the court must advise the  defendant  on  the
record, that if the defendant is not a citizen of the United States, the
defendant's plea of guilty and the court's acceptance thereof may result
in  the  defendant's deportation, exclusion from admission to the United
States or denial of naturalization pursuant to the laws  of  the  United
States.  Where  the plea of guilty is to a count or counts of an indict-

S. 2254                             3

ment charging a felony OR MISDEMEANOR offense other than a violent felo-
ny offense as defined in section 70.02 of the penal law or an A-I felony
offense other than an A-I felony as defined in article two hundred twen-
ty  of the penal law, the court must also, prior to accepting such plea,
advise the defendant that, if the defendant is  not  a  citizen  of  the
United States and is or becomes the subject of a final order of deporta-
tion issued by the United States Immigration and Naturalization Service,
the  defendant  may  be  paroled  to  the custody of the Immigration and
Naturalization Service for deportation purposes at any  time  subsequent
to  the commencement of any indeterminate or determinate prison sentence
imposed as a result of the defendant's plea. [The failure to advise  the
defendant pursuant to this subdivision shall not be deemed to affect the
voluntariness  of  a plea of guilty or the validity of a conviction, nor
shall it afford a defendant any rights in a subsequent proceeding relat-
ing to such defendant's deportation, exclusion or denial of  naturaliza-
tion.]
  S 6. Section 220.60 of the criminal procedure law is amended by adding
two new subdivisions 5 and 6 to read as follows:
  5. IF THE COURT FAILS TO ADVISE THE DEFENDANT, AND THE DEFENDANT SHOWS
THAT  ACCEPTANCE  OF  THE  PLEA  OF GUILTY OR CONVICTION OF THE CRIME OR
CRIMES TO WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE  CONSEQUENCES  FOR
THE  DEFENDANT  OF  DEPORTATION,  EXCLUSION FROM ADMISSION TO THE UNITED
STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF  THE  UNITED
STATES,  THE  COURT,  UPON  REQUEST  OF  THE DEFENDANT, SHALL PERMIT THE
DEFENDANT TO WITHDRAW THE PLEA OF GUILTY AND ENTER A PLEA OF NOT  GUILTY
AT  ANY  TIME  BEFORE  THE IMPOSITION OF SENTENCE, AND IN SUCH EVENT THE
ENTIRE ACCUSATORY INSTRUMENT, AS IT EXISTED AT THE TIME OF THE  PLEA  OF
GUILTY, IS RESTORED.
  6.  A  COURT'S  FAILURE  TO  PROVIDE  THE  ADVISEMENT REQUIRED BY THIS
SECTION SHALL NOT REQUIRE THE VACATION OF JUDGMENT OR WITHDRAWAL OF  THE
PLEA  OR  CONSTITUTE  GROUNDS  FOR FINDING A PRIOR CONVICTION INVALID IF
SUCH FAILURE OCCURRED PRIOR TO THE EFFECTIVE DATE OF  THIS  SUBDIVISION.
NOTHING  IN THIS CHAPTER, HOWEVER, SHALL BE DEEMED TO INHIBIT A COURT IN
THE SOUND EXERCISE OF  ITS  DISCRETION,  FROM  VACATING  A  JUDGMENT  OR
PERMITTING A DEFENDANT TO WITHDRAW A PLEA, ACCORDING TO LAW.
  S  7. Paragraph (h) of subdivision 1 of section 440.10 of the criminal
procedure law is amended and a new paragraph (i) is  added  to  read  as
follows:
  (h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States[.];
  (I) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
THERETO  FAILED  TO ADVISE THE DEFENDANT AS REQUIRED BY PARAGRAPH (E) OF
SUBDIVISION FOUR OF SECTION 170.10 OR AS REQUIRED BY  SUBDIVISION  SEVEN
OF  SECTION  180.10 OR AS REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15
OF THIS CHAPTER, PROVIDED THAT THE DEFENDANT SHOWS THAT THE ENTRY OF AND
ACCEPTANCE OF THE PLEA OF GUILTY  MAY  HAVE  THE  CONSEQUENCES  FOR  THE
DEFENDANT OF DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES,
OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.
  S 8. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 8 to read as follows:
  8. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
(I) OF SUBDIVISION ONE OF THIS SECTION, THAT THE ENTRY OF AND ACCEPTANCE
OF  THE  PLEA  OF  GUILTY MAY HAVE THE CONSEQUENCES FOR THE DEFENDANT OF
DEPORTATION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES, THE COURT MUST
ORDER A NEW TRIAL.

S. 2254                             4

  S 9. The office of court administration shall develop a bill of rights
and code of ethics for attorneys on how to advise aliens of the deporta-
tion consequences of a plea of guilty to a crime under state  law.  Such
office  is authorized and directed to promulgate any rule, regulation or
form  necessary  for  the implementation of this section within 180 days
after the date on which this act becomes a law.
  S 10. This act shall  take  effect  on  the  first  of  November  next
succeeding  the  date  on  which  it  shall have become a 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.

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