NY State Senate Bill 2017-S8692

Senate Bill S8692

2017-2018 Legislative Session

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

download bill text pdf

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
May 10, 2018	referred to codes

2017-S8692 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§170.10, 180.10 & 210.15, CP L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3154
2011-2012: S350
2013-2014: S860
2015-2016: S596
2019-2020: S1748
2021-2022: S3004

2017-S8692 (ACTIVE) - Summary

Requires a 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.

2017-S8692 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8692

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

Requires that an alien who is a defendant in the criminal justice system
be warned that the acceptance of a guilty plea may be grounds for depor-
tation, exclusion from admission to the United States, or denial of
naturalization.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1.  Legislative Findings and Declaration

Section 2. Amends the Criminal Procedure Law, Section 170.10 subdivision

4 by adding two new paragraphs (t) and (g). Provides that before a guil-
ty plea is accepted by an alien, the court shall inform the defendant
that acceptance of a guilty plea or conviction may result in such
defendant's deportation, exclusion from admission to the United States,
or denial of naturalization. Provides that upon request, the court shall
allow the defendant additional time to consider the appropriateness of
the plea in light of the advisement.

Section 3. Amends the Criminal Procedure Law, Section 180.10 by adding a
new subdivision 7. Provides that before an alien accepts a guilty plea,
the court shall inform the defendant that acceptance of a guilty plea or
conviction may result in such defendant's deportation, exclusion from
admission to the United States, or denial of naturalization. Provides
that upon request, the court shall allow the defendant additional time
to consider the appropriateness of the plea in light of the advisement.

Section 4. Amends the Criminal Procedure Law, Section 210.15 by adding a
new subdivision 4. Provides that if the Court fails to so advise the
defendant, such defendant will have the right to withdraw the guilty
plea. Absent an official record in the court file that the court
provided the advisement as prescribed, the defendant shall be presumed
not to have received the advisement. Allows the court to set aside the
judgment and permit the defendant to withdraw the plea. - Provides that
the defendant shall not be required at any time during the proceedings
or at the time of the plea to disclose his or her legal status.

Section 5. Effective Date

 
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, exclusion from admission to
the United States, or denial of naturalization. Allowing any such guilty
pleas taken in ignorance of major consequences constitutes a denial of
elementary concepts of fairness and may constitute a denial of due proc-
ess.

 
PRIOR LEGISLATIVE HISTORY:

2014: S.860 - Referred to Codes / A.5279 - Referred to Codes
2013: S.860 - Referred to Codes / A.5279 - Referred to Codes
2012: S.350: Referred to Judiciary
2011: S.350 - Notice of Committee Consideration Requested, Committee
Discharged, Committed to Judiciary
2009-10: S.31548 - Amend and Recommit to Codes/A.5883B - Amend and
Recommit to Rules
2007-08: S.776 - Referred to Codes/A.5191 - Held for Consideration in
Codes
2005-06: S.829 - Referred to Codes/A.4100 - Referred to Codes
2003-04: S.3826 - Motion to Petition Lost/A.5267 - Referred to Codes
2016: referred to codes

 
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 a law.

2017-S8692 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8692
 
                             I N  S E N A T E
 
                               May 10, 2018
                                ___________
 
 Introduced by Sen. SEPULVEDA -- read twice and ordered printed, 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 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-
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD07358-01-7

 S. 8692                             2
 
 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
 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

 S. 8692                             3
 
 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.

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