S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3436
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 29, 2019
                                ___________
 
 Introduced  by M. of A. ORTIZ -- read once and referred to the Committee
   on Codes
 
 AN ACT to amend the criminal procedure law, in relation to  requiring  a
   court  advisement of possible immigration consequences to a noncitizen
   of pleading guilty to a state law offense

   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 under
 state law, a plea of guilty is entered  without  the  defendant  knowing
 that  a  conviction  of  such  offense is grounds for deportation, immi-
 gration detention, exclusion from admission to  the  United  States,  or
 denial  of  naturalization  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  defend-
 ant's counsel was unaware of the possibility of deportation, immigration
 detention,  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 a new paragraph (f) to read as follows:
   (F)  WHERE THE ACCUSATORY INSTRUMENT IS AN INFORMATION, A PROSECUTOR'S
 INFORMATION OR A MISDEMEANOR COMPLAINT,  AT  ARRAIGNMENT  AND  PRIOR  TO
 ACCEPTANCE OF A PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINIS-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07231-01-9

 A. 3436                             2
 
 TERING  ANY  OTHER  WARNING  REQUIRED  BY  LAW, ADMINISTER THE FOLLOWING
 ADVISEMENT ON THE RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT
 OF RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFEND-
 ANT;  "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 OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPOR-
 TATION,  IMMIGRATION  DETENTION,  EXCLUSION FROM ADMISSION TO THE UNITED
 STATES, OR DENIAL OF CITIZENSHIP PURSUANT TO  THE  LAWS  OF  THE  UNITED
 STATES."    THIS  ADVISEMENT  SHALL  BE  GIVEN  TO ALL DEFENDANTS AND NO
 DEFENDANT SHALL BE REQUIRED TO DISCLOSE HIS OR HER LEGAL STATUS  IN  THE
 UNITED STATES TO THE COURT.
   § 3. Section 180.10 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.  AT  ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE OF A
 PLEA OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY  OTHER
 WARNING  REQUIRED  BY  LAW,  ADMINISTER  THE FOLLOWING ADVISEMENT ON THE
 RECORD TO THE DEFENDANT OR IF THE COURT IS NOT A COURT OF  RECORD  ON  A
 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
 NOT  A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT ACCEPT-
 ANCE BY THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE  OFFENSE  FOR
 WHICH  YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION, IMMIGRATION
 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR  DENIAL  OF
 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES."  THIS ADVISEMENT
 SHALL  BE  GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE REQUIRED TO
 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
   § 4. Section 210.15 of the criminal procedure law is amended by adding
 a new subdivision 4 to read as follows:
   4. AT ARRAIGNMENT ON A FELONY COMPLAINT AND PRIOR TO ACCEPTANCE  OF  A
 PLEA  OF GUILTY, THE COURT SHALL, IN ADDITION TO ADMINISTERING ANY OTHER
 WARNING REQUIRED BY LAW, ADMINISTER  THE  FOLLOWING  ADVISEMENT  ON  THE
 RECORD  TO  THE  DEFENDANT OR IF THE COURT IS NOT A COURT OF RECORD ON A
 WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT; "IF YOU ARE
 NOT A CITIZEN OF THE UNITED STATES, YOU ARE HEREBY ADVISED THAT  ACCEPT-
 ANCE  BY  THE COURT OF A PLEA OF GUILTY OR CONVICTION OF THE OFFENSE FOR
 WHICH YOU HAVE BEEN CHARGED MAY RESULT IN YOUR DEPORTATION,  IMMIGRATION
 DETENTION,  EXCLUSION  FROM ADMISSION TO THE UNITED STATES, OR DENIAL OF
 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES."  THIS ADVISEMENT
 SHALL BE GIVEN TO ALL DEFENDANTS AND NO DEFENDANT SHALL BE  REQUIRED  TO
 DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES TO THE COURT.
   § 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  offense]  ANY  OFFENSE  PUNISHABLE  UNDER  STATE LAW, the court must
 advise the defendant on the record OR IF THE COURT IS  NOT  A  COURT  OF
 RECORD ON A WRITING SUBSCRIBED BY THE COURT AND SIGNED BY THE DEFENDANT,
 that if the defendant is not a citizen of the United States, the defend-
 ant's  plea  of  guilty and the court's acceptance thereof may result in
 the  defendant's  deportation,  IMMIGRATION  DETENTION,  exclusion  from
 admission to the United States or denial of [naturalization] CITIZENSHIP
 pursuant  to  the laws of the United States. Where the plea of guilty is
 to a count or counts of an indictment charging a  felony  offense  other
 than  a  violent felony 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 twenty of the penal law, the court must also, prior

 A. 3436                             3
 
 to accepting such plea, 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 deportation 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 determi-
 nate  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 validi-
 ty  of  a  conviction,  nor  shall it afford a defendant any rights in a
 subsequent proceeding relating to such defendant's  deportation,  exclu-
 sion or denial of naturalization.] THIS ADVISEMENT SHALL BE GIVEN TO ALL
 DEFENDANTS  AND NO DEFENDANT SHALL BE REQUIRED, AT THE TIME OF THE PLEA,
 TO DISCLOSE HIS OR HER LEGAL STATUS IN THE UNITED STATES, TO THE COURT.
   § 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 MAKE THE  ADVISEMENT  PRIOR  TO  ACCEPTING  A
 DEFENDANT'S  PLEA  OF GUILTY AS REQUIRED BY PARAGRAPH (F) OF SUBDIVISION
 FOUR OF SECTION 170.10, AS REQUIRED  BY  SUBDIVISION  EIGHT  OF  SECTION
 180.10,  AS  REQUIRED  BY  SUBDIVISION  FOUR  OF  SECTION  210.15, OR AS
 REQUIRED BY SUBDIVISION SEVEN OF SECTION 220.50 OF THIS CHAPTER, AND THE
 DEFENDANT SHOWS THAT ACCEPTANCE OF THE PLEA OF GUILTY OR  CONVICTION  OF
 THE  OFFENSE TO WHICH DEFENDANT PLEADED GUILTY MAY HAVE THE CONSEQUENCES
 FOR THE DEFENDANT OF DEPORTATION, IMMIGRATION DETENTION, EXCLUSION  FROM
 ADMISSION TO THE UNITED STATES, OR DENIAL OF CITIZENSHIP 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, IS 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.
   § 7. Paragraph (i) of subdivision 1 of section 440.10 of the  criminal
 procedure  law,  as  amended  by chapter 368 of the laws of 2015 and the
 opening paragraph of paragraph (i) as amended by chapter 189 of the laws
 of 2018, 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 person for prostitution or promoting  pros-
 titution)  or  230.00 (prostitution) or 230.03 (prostitution in a school
 zone) of the penal law, and the defendant's participation in the offense
 was a result of having been a victim of sex  trafficking  under  section
 230.34  of  the  penal  law,  sex  trafficking  of a child under section
 230.34-a of the penal law, labor trafficking under section 135.35 of the
 penal law, aggravated labor trafficking  under  section  135.37  of  the
 penal  law,  compelling  prostitution  under section 230.33 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

 A. 3436                             4
 
 compelling prostitution crime or has sought services for victims of such
 trafficking  or  compelling  prostitution  crime,  subject to reasonable
 concerns for the safety of the defendant, family members of the  defend-
 ant,  or  other  victims  of such trafficking or compelling prostitution
 crime 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
 trafficking, compelling prostitution or trafficking in  persons  at  the
 time  of  the  offense  from a federal, state or local government agency
 shall create a presumption that the  defendant's  participation  in  the
 offense was a result of having been a victim of sex trafficking, compel-
 ling  prostitution  or trafficking in persons, but shall not be required
 for granting a motion under this paragraph[.];
   (J) THE JUDGMENT WAS ENTERED UPON A PLEA OF GUILTY AND THE COURT PRIOR
 THERETO FAILED TO ADVISE THE DEFENDANT PRIOR TO ACCEPTING A  DEFENDANT'S
 PLEA  OF  GUILTY  AS  REQUIRED  BY  PARAGRAPH (F) OF SUBDIVISION FOUR OF
 SECTION 170.10, AS REQUIRED BY SUBDIVISION EIGHT OF SECTION  180.10,  AS
 REQUIRED BY SUBDIVISION FOUR OF SECTION 210.15, OR AS REQUIRED BY SUBDI-
 VISION  SEVEN  OF  SECTION  220.50  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, IMMIGRATION
 DETENTION, EXCLUSION FROM ADMISSION TO THE UNITED STATES, OR  DENIAL  OF
 CITIZENSHIP PURSUANT TO THE LAWS OF THE UNITED STATES.
   § 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, IMMIGRATION DETENTION,  EXCLUSION  FROM  ADMISSION  TO  THE
 UNITED  STATES,  OR  DENIAL  OF  CITIZENSHIP PURSUANT TO THE LAWS OF THE
 UNITED STATES, THE COURT MUST VACATE THE JUDGMENT, AND PERMIT THE  WITH-
 DRAWAL  OF THE GUILTY PLEA. IN SUCH EVENT, THE ENTIRE ACCUSATORY INSTRU-
 MENT, AS IT EXISTED AT THE TIME OF THE PLEA OF GUILTY, IS RESTORED,  AND
 THE  COURT  MAY  TAKE  SUCH  OTHER  ACTION AS WOULD BE APPROPRIATE UNDER
 SUBDIVISION FOUR OF THIS SECTION.
   § 9. This act shall take effect on the first of November next succeed-
 ing 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.