S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1912
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2017
                                ___________
 
 Introduced  by  M. of A. SEPULVEDA, AUBRY, JAFFEE, STECK, RIVERA, RAMOS,
   CAHILL -- Multi-Sponsored by -- M. of A. GOTTFRIED,  MONTESANO,  PERRY
   -- 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.
   § 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07358-01-7

 A. 1912                             2
 
 TY 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 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.
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.  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.
   § 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

 A. 1912                             3
 
 DEFENDANT  UNDERSTOOD  THE  PLEA  OF  GUILTY, OR ADMISSION TO SUFFICIENT
 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.
   § 5. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.