S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2903--A
     Cal. No. 607
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2021
                                ___________
 
 Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes -- reported  favora-
   bly  from  said committee, ordered to first and second report, ordered
   to a third reading, amended and ordered reprinted, retaining its place
   in the order of third reading

 AN ACT to amend the criminal procedure law, in relation to requiring the
   court, prior to accepting a plea, to advise the defendant of the  risk
   of deportation if he or she is not a citizen
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. 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. (A) 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,  the court must advise the defendant on the record, that if
 the defendant is not a citizen of the  United  States,  the  defendant's
 plea  of  guilty  and  the  court's acceptance thereof may result in the
 defendant's deportation, exclusion from admission to the  United  States
 or  denial  of naturalization pursuant to the laws of the United States.
 Where the plea of guilty is to a count or counts of an indictment charg-
 ing 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 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 determinate prison sentence imposed as a result of the

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03016-02-1

 S. 2903--A                          2

 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 validity of a conviction, nor shall it afford a defendant
 any  rights  in  a  subsequent  proceeding  relating to such defendant's
 deportation, exclusion or denial  of  naturalization.]  THE  DEFENDANT'S
 ENTRY  OF  A PLEA OF GUILTY TO ANY ACCUSATORY INSTRUMENT IN ANY CRIMINAL
 ACTION, THE COURT SHALL ORALLY GIVE EVERY DEFENDANT ON  THE  RECORD  THE
 FOLLOWING  NOTIFICATION: "IF YOU ARE NOT A CITIZEN OF THE UNITED STATES,
 YOU MAY BECOME DEPORTABLE, INELIGIBLE FOR NATURALIZATION OR INADMISSIBLE
 TO THE UNITED STATES BASED ON A CONVICTION BY PLEA OR VERDICT."
   (I) THE COURT SHALL NOTIFY EVERY DEFENDANT  IN  A  LANGUAGE  THAT  THE
 DEFENDANT  UNDERSTANDS  WITHOUT INQUIRING ABOUT THE DEFENDANT'S CITIZEN-
 SHIP OR IMMIGRATION STATUS ON THE RECORD.
   (II) ONLY THE COURT SHALL NOTIFY DEFENDANTS ABOUT THE  POSSIBILITY  OF
 DEPORTABILITY,  INELIGIBILITY  FOR NATURALIZATION, OR INADMISSIBILITY TO
 THE UNITED STATES PURSUANT TO THIS PARAGRAPH.  THE COURT AND THE  PEOPLE
 SHALL  NOT  MAKE  ANY  OTHER  STATEMENTS ABOUT IMMIGRATION CONSEQUENCES,
 INCLUDING BUT NOT LIMITED TO  STATEMENTS  REGARDING  LIKELY  IMMIGRATION
 CONSEQUENCES,  CONDITION  DEFENDANT'S  GUILTY  PLEA  REGARDLESS OF IMMI-
 GRATION CONSEQUENCES, OR REQUIRE WAIVER OF ANY ISSUE OR CLAIM RELATED TO
 IMMIGRATION CONSEQUENCES.
   (III) UPON REQUEST OF THE DEFENDANT, THE COURT SHALL ALLOW THE DEFEND-
 ANT ADDITIONAL TIME TO SECURE COUNSEL OR CONSIDER THE APPROPRIATENESS OF
 THE PLEA FOLLOWING THE NOTIFICATION DESCRIBED IN THIS SUBDIVISION,  WITH
 SUCH PLEA OFFER REMAINING OPEN.
   (IV)  ADVICE REGARDING IMMIGRATION CONSEQUENCES GIVEN BY DEFENSE COUN-
 SEL DOES NOT ABSOLVE THE COURT OF ITS INDEPENDENT OBLIGATION TO GIVE THE
 NOTICE MANDATED IN THIS SUBDIVISION.
   (V) THE NOTIFICATION DOES NOT ABSOLVE DEFENSE COUNSEL OF  HIS  OR  HER
 INDEPENDENT  OBLIGATION  TO  EXPLAIN THE IMMIGRATION CONSEQUENCES TO THE
 DEFENDANT.
   (VI) NOTHING IN THIS SUBDIVISION SHALL PROHIBIT A COURT OR THE  PEOPLE
 FROM  CONSIDERING THE IMMIGRATION STATUS OF DEFENDANT IN ACCEPTING ENTRY
 OF A PLEA, IMPOSING A LOWER SENTENCE ACCORDING TO LAW, CONSENTING  TO  A
 LESSER INCLUDED OFFENSE, OR FILING AN ADDITIONAL ACCUSATORY INSTRUMENT.
   (B)  AT  THE  TIME  OF  DEFENDANT'S  ARRAIGNMENT, THE COURT SHALL ALSO
 COMPLY WITH PARAGRAPH (A) OF THIS SUBDIVISION, THOUGH FAILURE TO  DO  SO
 DOES NOT REQUIRE VACATUR PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION.
   (C)  WHEN  A  CONVICTION  OR  PLEA HAS POTENTIAL OR ACTUAL IMMIGRATION
 CONSEQUENCES FOR A DEFENDANT, THE COURT'S  FAILURE  TO  STRICTLY  COMPLY
 WITH  PARAGRAPH  (A) OF THIS SUBDIVISION, ON OR AFTER THE EFFECTIVE DATE
 OF THIS SUBDIVISION, SHALL RENDER THE PLEA UNKNOWING,  INVOLUNTARY,  AND
 UNINTELLIGENT,  REQUIRING VACATUR.  THE COURT'S FAILURE TO HAVE SUBSTAN-
 TIALLY COMPLIED WITH PARAGRAPH (A) OF THIS SUBDIVISION IN ANY  NON-FINAL
 CRIMINAL  PROSECUTION FROM NOVEMBER NINETEENTH, TWO THOUSAND THIRTEEN TO
 THE EFFECTIVE DATE OF THIS SUBDIVISION SHALL RENDER THE PLEA  UNKNOWING,
 INVOLUNTARY,  AND  UNINTELLIGENT,  REQUIRING  VACATUR. AN APPLICATION TO
 VACATE THE JUDGMENT OR WITHDRAW THE DEFENDANT'S PLEA OF GUILTY  ON  THIS
 BASIS CAN BE RAISED EITHER ON DIRECT APPEAL OR AT ANY TIME PURSUANT TO A
 MOTION  UNDER PARAGRAPH (H) OF SUBDIVISION ONE OF SECTION 440.10 OF THIS
 CHAPTER.
   (I) THE TERM "POTENTIAL OR ACTUAL IMMIGRATION  CONSEQUENCES"  INCLUDES
 BUT  IS  NOT LIMITED TO THE USE OF THE RELEVANT PENAL LAW SECTION IN ANY
 REMOVAL PROCEEDING OR ADJUDICATION UNDER FEDERAL IMMIGRATION LAW.
   (II) ALL RECORDS, PAPERS, AND AFFIRMATIONS SUBMITTED BY THE  DEFENDANT
 TO  ESTABLISH THAT HE OR SHE IS NOT A UNITED STATES CITIZEN AND THAT THE

 S. 2903--A                          3
 
 CONVICTION HAS POTENTIAL OR ACTUAL IMMIGRATION CONSEQUENCES  ARE  CONFI-
 DENTIAL AND MAY NOT BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE
 AGENCY,  EXCEPT  WHERE  SPECIFICALLY  REQUIRED  BY  STATUTE  OR  WHEN SO
 REQUESTED BY THE DEFENDANT.
   (III)  UNLESS THE REQUIRED NOTIFICATION APPEARS ON THE RECORD OR IF NO
 RECORD EXISTS, THE DEFENDANT SHALL BE PRESUMED TO HAVE NOT RECEIVED  THE
 NOTIFICATION FROM THE COURT.
   (IV)  THIS  REMEDY FOR THE COURT'S FAILURE TO PROVIDE THE NOTIFICATION
 IS REQUIRED NOTWITHSTANDING ANY PRESERVATION REQUIREMENT OR  FAILURE  TO
 OBJECT BY THE DEFENDANT TO THE COURT'S FAILURE TO GIVE THE NOTIFICATION.
   (V) THIS REMEDY FOR THE COURT'S FAILURE TO PROVIDE THE NOTIFICATION IS
 REQUIRED NOTWITHSTANDING ANY PREJUDICE REQUIREMENT.
   (D)  NO  COURT MAY RELY ON THE EXISTENCE OF A NOTIFICATION GIVEN UNDER
 THIS SUBDIVISION IN CONSIDERING WHETHER A DEFENDANT  SUFFERED  PREJUDICE
 OR  RECEIVED  MEANINGFUL  REPRESENTATION  UNDER THE CONSTITUTION OF THIS
 STATE.   MEANINGFUL REPRESENTATION REQUIRES,  AT  MINIMUM,  FOR  DEFENSE
 COUNSEL  TO  DETERMINE,  ADVISE, AND NEGOTIATE EFFECTIVELY REGARDING THE
 IMMIGRATION CONSEQUENCES OF A DEFENDANT'S CHARGES, PLEA, OR CONVICTION.
   § 2. This act shall take effect on the ninetieth day  after  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 one of
 this  act  shall  not affect the repeal of such subdivision and shall be
 deemed repealed therewith.