BILL NUMBER: S7103

SPONSOR: KAVANAGH
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to requiring the court, prior to accepting a plea to a misde-
meanor or violation, to advise the defendant of the risk of deportation
if he or she is not a citizen

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill requires notification of alien defendants during the plea
process that pleading guilty to a misdemeanor or violation may subject
them to automatic removal (deportation) or denial of naturalization.

 
SUMMARY OF SPECIFIC PROVISIONS:

This bill adds a new subdivision 5 to section 340.20 of the criminal
procedure law, requiring alien defendants to be notified that pleading
guilty to misdemeanors or violations may have immigration consequences
Such notification shall be on the record. For those courts not of
record, the bill requires a writing affirming that the warning was given
              

contemporaneous with the plea, and a form would suffice for this
purpose.

 
JUSTIFICATION:

In 1996, Congress made major changes to federal immigration law. Under
the new federal law, legal immigrants and residents may be subject to
automatic removal (deportation) even if they plead guilty to some minor
offenses classified under N.Y. law as violations. Deportation may also
be a threat for those whose proceedings do not result in a conviction
under N.Y. law (i.e. entry of guilty plea to drug treatment on order of
court as alternative to conviction and incarceration).

Unfortunately, defendants pleading guilty to these minor offenses are
unaware of the harsh federal immigration consequences of doing so.
Because of the broad scope of the 1996 immigration law, defendants who
have plead guilty to some minor offenses, even more than 25 years ago,
are now subject to deportation. As a result, immigrant communities have
lost confidence in state courts and the criminal justice system general-
ly.

This bill requires defendants to be notified during the plea process for
misdemeanors and violations that pleading guilty may subject them to
automatic deportation or denial of naturalization. Legal residents and
immigrants will now have the opportunity to consider the harsh immi-
gration consequences of pleading guilty to a minor offense, even if
doing so would have provided no sentence or fine.

At least nine other states have similar statutes or court rules requir-
ing 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.

Defendants should, at the very least, be made aware that pleading guilty
to some of these minor offenses could put them on a plane out of the
country or worse -- removal to a detention center cell for an indefinite
term while awaiting deportation. This bill, while providing no rights to
illegal immigrants, provides legal immigrants and residents with the
protection of making a plea with the understanding of its immigration
consequences.

 
LEGISLATIVE HISTORY:

2016: S1353/A754 - REFERRED TO CODES/ advanced to third reading
2015: S1353/A754 - REFERRED TO CODES/ advanced to third reading
2013-2014: S.216 - REFERRED TO CODES
2011-2012: S.632 - CODES COMMITTEE DISCHARGED AND COMMITTED TO RULES
2009-2010: S.4399 (Schneiderman)/A.4963 - ADVANCED TO THIRD READING
2001-2008: A.4166 - reported referred to rules
2005-2006: A.6884 - referred to codes
2003-2004: A.6019 - reported referred to rules
2001-2002: A.7702 - passed assembly
1999-2000: S.4077(Velella)/A.7175 - REFERRED TO CODES/passed assembly

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the 90th day after enactment.