S T A T E   O F   N E W   Y O R K
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                                  9441

                          I N  A S S E M B L Y

                              March 1, 2012
                               ___________

Introduced  by M. of A. LINARES -- read once and referred to the Commit-
  tee 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 (f) to read as follows:
  (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
INFORMATION OR A MISDEMEANOR COMPLAINT, PRIOR TO ACCEPTANCE OF A PLEA OF
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD05040-01-1

A. 9441                             2

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, 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, 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  SUBSTANTIALLY  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 DEPORTA-
TION, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL OF  NATUR-
ALIZATION  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  ADMIN-
ISTERED.
  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-
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,

A. 9441                             3

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, SHALL BE 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 (i) of subdivision 1 of section 440.10 of the  criminal
procedure  law,  as added by chapter 332 of the laws of 2010, is amended
and a new paragraph (j) is added to read as follows:
  (i) The judgment is a conviction where the arresting charge was  under
section  240.37 (loitering for the purpose of engaging in a prostitution
offense, provided that the defendant was not alleged to be loitering for
the purpose of patronizing a prostitute or  promoting  prostitution)  or
230.00  (prostitution)  of  the  penal  law, and the defendant's partic-
ipation in the offense was a result of having been a victim of sex traf-
ficking under section 230.34 of the penal law or trafficking in  persons
under  the Trafficking Victims Protection Act (United States Code, title
22, chapter 78); provided that
  (i) a motion under this paragraph shall be made  with  due  diligence,
after the defendant has ceased to be a victim of such trafficking or has
sought  services  for victims of such trafficking, subject to reasonable
concerns for the safety of the defendant, family members of the  defend-
ant, or other victims of such trafficking that may be jeopardized by the
bringing  of  such  motion,  or  for  other  reasons consistent with the
purpose of this paragraph; and
  (ii) official documentation of the defendant's status as a  victim  of
sex  trafficking  or  trafficking  in persons at the time of the offense
from a federal, state or local government agency shall create a presump-
tion that the defendant's participation in the offense was a  result  of
having  been  a victim of sex trafficking or trafficking in persons, but
shall not be required for granting a motion under this paragraph[.];

A. 9441                             4

  (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
THERETO FAILED TO ADVISE THE DEFENDANT AS REQUIRED BY PARAGRAPH  (F)  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 9 to read as follows:
  9. UPON GRANTING THE MOTION UPON THE GROUND, AS SET FORTH IN PARAGRAPH
(J) 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
SHALL ORDER A NEW TRIAL.
  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.