STATE OF NEW YORK ________________________________________________________________________ 3057 2023-2024 Regular Sessions IN ASSEMBLY February 2, 2023 ___________ Introduced by M. of A. CRUZ -- read once and referred to the Committee on Codes 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: 1 Section 1. Subdivision 7 of section 220.50 of the criminal procedure 2 law, as amended by chapter 738 of the laws of 2004, is amended to read 3 as follows: 4 7. (a) Prior to [accepting a defendant's plea of guilty to a count or 5 counts of an indictment or a superior court information charging a felo- 6 ny offense, the court must advise the defendant on the record, that if 7 the defendant is not a citizen of the United States, the defendant's 8 plea of guilty and the court's acceptance thereof may result in the 9 defendant's deportation, exclusion from admission to the United States 10 or denial of naturalization pursuant to the laws of the United States. 11 Where the plea of guilty is to a count or counts of an indictment charg- 12 ing a felony offense other than a violent felony offense as defined in 13 section 70.02 of the penal law or an A-I felony offense other than an 14 A-I felony as defined in article two hundred twenty of the penal law, 15 the court must also, prior to accepting such plea, advise the defendant 16 that, if the defendant is not a citizen of the United States and is or 17 becomes the subject of a final order of deportation issued by the United 18 States Immigration and Naturalization Service, the defendant may be 19 paroled to the custody of the Immigration and Naturalization Service for 20 deportation purposes at any time subsequent to the commencement of any 21 indeterminate or determinate prison sentence imposed as a result of the 22 defendant's plea. The failure to advise the defendant pursuant to this 23 subdivision shall not be deemed to affect the voluntariness of a plea of 24 guilty or the validity of a conviction, nor shall it afford a defendant EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07452-01-3
A. 3057 2 1 any rights in a subsequent proceeding relating to such defendant's 2 deportation, exclusion or denial of naturalization.] the defendant's 3 entry of a plea of guilty to any accusatory instrument in any criminal 4 action, the court shall orally give every defendant on the record the 5 following notification: "If you are not a citizen of the United States, 6 you may become deportable, ineligible for naturalization or inadmissible 7 to the United States based on a conviction by plea or verdict." 8 (i) The court shall notify every defendant in a language that the 9 defendant understands without inquiring about the defendant's citizen- 10 ship or immigration status on the record. 11 (ii) Only the court shall notify defendants about the possibility of 12 deportability, ineligibility for naturalization, or inadmissibility to 13 the United States pursuant to this paragraph. The court and the people 14 shall not make any other statements about immigration consequences, 15 including but not limited to statements regarding likely immigration 16 consequences, condition defendant's guilty plea regardless of immi- 17 gration consequences, or require waiver of any issue or claim related to 18 immigration consequences. 19 (iii) Upon request of the defendant, the court shall allow the defend- 20 ant additional time to secure counsel or consider the appropriateness of 21 the plea following the notification described in this subdivision, with 22 such plea offer remaining open. 23 (iv) Advice regarding immigration consequences given by defense coun- 24 sel does not absolve the court of its independent obligation to give the 25 notice mandated in this subdivision. 26 (v) The notification does not absolve defense counsel of his or her 27 independent obligation to explain the immigration consequences to the 28 defendant. 29 (vi) Nothing in this subdivision shall prohibit a court or the people 30 from considering the immigration status of defendant in accepting entry 31 of a plea, imposing a lower sentence according to law, consenting to a 32 lesser included offense, or filing an additional accusatory instrument. 33 (b) At the time of defendant's arraignment, the court shall also 34 comply with paragraph (a) of this subdivision, though failure to do so 35 does not require vacatur pursuant to paragraph (c) of this subdivision. 36 (c) When a conviction or plea has potential or actual immigration 37 consequences for a defendant, the court's failure to strictly comply 38 with paragraph (a) of this subdivision, on or after the effective date 39 of this subdivision, shall render the plea unknowing, involuntary, and 40 unintelligent, requiring vacatur. The court's failure to have substan- 41 tially complied with paragraph (a) of this subdivision in any non-final 42 criminal prosecution from November nineteenth, two thousand thirteen to 43 the effective date of this subdivision shall render the plea unknowing, 44 involuntary, and unintelligent, requiring vacatur. An application to 45 vacate the judgment or withdraw the defendant's plea of guilty on this 46 basis can be raised either on direct appeal or at any time pursuant to a 47 motion under paragraph (h) of subdivision one of section 440.10 of this 48 chapter. 49 (i) The term "potential or actual immigration consequences" includes 50 but is not limited to the use of the relevant penal law section in any 51 removal proceeding or adjudication under federal immigration law. 52 (ii) All records, papers, and affirmations submitted by the defendant 53 to establish that he or she is not a United States citizen and that the 54 conviction has potential or actual immigration consequences are confi- 55 dential and may not be made available to any person or public or private
A. 3057 3 1 agency, except where specifically required by statute or when so 2 requested by the defendant. 3 (iii) Unless the required notification appears on the record or if no 4 record exists, the defendant shall be presumed to have not received the 5 notification from the court. 6 (iv) This remedy for the court's failure to provide the notification 7 is required notwithstanding any preservation requirement or failure to 8 object by the defendant to the court's failure to give the notification. 9 (v) This remedy for the court's failure to provide the notification is 10 required notwithstanding any prejudice requirement. 11 (d) No court may rely on the existence of a notification given under 12 this subdivision in considering whether a defendant suffered prejudice 13 or received meaningful representation under the constitution of this 14 state. Meaningful representation requires, at minimum, for defense 15 counsel to determine, advise, and negotiate effectively regarding the 16 immigration consequences of a defendant's charges, plea, or conviction. 17 § 2. This act shall take effect on the ninetieth day after it shall 18 have become a law; provided, however, that the amendments to subdivision 19 7 of section 220.50 of the criminal procedure law made by section one of 20 this act shall not affect the repeal of such subdivision and shall be 21 deemed repealed therewith.