S T A T E   O F   N E W   Y O R K
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                                  5279

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 22, 2013
                               ___________

Introduced  by  M.  of  A.  SEPULVEDA  --  read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law, in relation to requiring  an
  advisement  by  the  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 two new paragraphs (f) and (g) to read as follows:
  (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
INFORMATION OR A MISDEMEANOR COMPLAINT, BEFORE ACCEPTING A PLEA OF GUIL-
TY TO ANY OFFENSE PUNISHABLE AS A CRIME UNDER STATE LAW, THE COURT SHALL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00684-01-3
              

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ADDRESS  THE  DEFENDANT  PERSONALLY  IN OPEN COURT, ON THE RECORD, UNDER
OATH, INFORMING HIM OR HER OF AND DETERMINING THAT HE OR SHE UNDERSTANDS
THE FOLLOWING:  "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."
ABSENT  A RECORD THAT THE COURT PROVIDED THE ADVISEMENT REQUIRED BY THIS
PARAGRAPH, THE DEFENDANT SHALL BE PRESUMED  NOT  TO  HAVE  RECEIVED  THE
REQUIRED ADVISEMENT.
  (G)  UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL TIME
TO CONSIDER THE APPROPRIATENESS OF THE PLEA IN LIGHT OF  THE  ADVISEMENT
AS DESCRIBED IN PARAGRAPH (F) OF THIS SUBDIVISION.
  S 3. Section 180.10 of the criminal procedure law is amended by adding
a new subdivision 7 to read as follows:
  7.    BEFORE ACCEPTING A PLEA OF GUILTY TO ANY OFFENSE PUNISHABLE AS A
CRIME UNDER STATE LAW, THE COURT SHALL ADDRESS THE DEFENDANT  PERSONALLY
IN  OPEN  COURT,  ON THE RECORD, UNDER OATH, INFORMING HIM OR HER OF AND
DETERMINING THAT HE OR SHE UNDERSTANDS THE FOLLOWING:  "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  ADMIS-
SION  TO  THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE
LAWS OF THE UNITED STATES."  ABSENT A RECORD THAT THE COURT PROVIDED THE
ADVISEMENT REQUIRED BY THIS SUBDIVISION, THE DEFENDANT SHALL BE PRESUMED
NOT TO HAVE RECEIVED THE REQUIRED ADVISEMENT.
  UPON REQUEST, THE COURT SHALL ALLOW THE DEFENDANT ADDITIONAL  TIME  TO
CONSIDER  THE  APPROPRIATENESS OF THE PLEA IN LIGHT OF THE ADVISEMENT AS
DESCRIBED IN PARAGRAPH (F) OF SUBDIVISION FOUR OF SECTION 170.10 OF THIS
TITLE.
  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
AND PLACED UPON 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."   ABSENT A  RECORD  THAT  THE  COURT  PROVIDED  THE  ADVISEMENT
REQUIRED  BY  THIS  SUBDIVISION,  THE DEFENDANT SHALL BE PRESUMED NOT TO
HAVE RECEIVED THE REQUIRED ADVISEMENT. IF THE COURT FAILS TO  SO  ADVISE
THE  DEFENDANT,  AND  HE  OR SHE LATER AT ANY TIME SHOWS THAT HIS OR HER
PLEA AND CONVICTION MAY HAVE OR HAS HAD ONE  OF  THE  ENUMERATED  CONSE-
QUENCES, EVEN IF THE DEFENDANT HAS ALREADY BEEN DEPORTED FROM THE UNITED
STATES,  THE COURT, ON THE DEFENDANT'S MOTION, SHALL VACATE THE JUDGMENT
AND PERMIT THE DEFENDANT TO WITHDRAW THE PLEA OF GUILTY OR ADMISSION  OR
SUFFICIENT  FACTS,  AND  ENTER A PLEA OF NOT GUILTY.  ABSENT AN OFFICIAL
RECORD IN THE COURT FILE THAT  THE  COURT  PROVIDED  THE  ADVISEMENT  AS
PRESCRIBED  IN THIS SECTION, THE DEFENDANT SHALL BE PRESUMED NOT TO HAVE
RECEIVED ADVISEMENT. AN ADVISEMENT PREVIOUSLY OR  SUBSEQUENTLY  PROVIDED
TO  THE  DEFENDANT  DURING  ANOTHER  PLEA COLLOQUY SHALL NOT SATISFY THE
ADVISEMENT REQUIRED BY THIS SECTION, NOR SHALL IT BE USED TO PRESUME THE
DEFENDANT UNDERSTOOD THE PLEA OF  GUILTY,  OR  ADMISSION  TO  SUFFICIENT

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FACTS HE OR SHE SEEKS TO VACATE AND WOULD HAVE THE CONSEQUENCE OF DEPOR-
TATION, REMOVAL, EXCLUSION FROM ADMISSION TO THE UNITED STATES OR DENIAL
OF  NATURALIZATION.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED AS
PREVENTING  THE  COURT,  IN  THE  SOUND  EXERCISE OF ITS DISCRETION FROM
SETTING ASIDE THE JUDGMENT OF CONVICTION AND PERMITTING THE DEFENDANT TO
WITHDRAW HIS OR HER PLEA. THE DEFENDANT SHALL NOT  BE  REQUIRED  AT  ANY
TIME  DURING  THE  PROCEEDINGS OR AT THE TIME OF THE PLEA TO DISCLOSE TO
THE COURT HIS OR HER LEGAL STATUS IN THE UNITED STATES.
  S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.