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

BILL NUMBER:S1018 REVISED 01/11/12

Title of bill

An act to amend the criminal procedure law, in relation to requiring an advisement by a court regarding the possible consequences to an alien of the acceptance of a plea of guilty to a crime under state law

Purpose

The purpose of this bill is to require courts to advise aliens of deportation consequences upon the acceptance of a guilty plea and to allow aliens to withdraw a guilty plea should such communication not take place.

Summary of provisions

This legislation amends sections 170.10, 180.10, 210.15, 220.50, 220.60 and 440.10 of the criminal procedure law to provide that prior to acceptance of a guilty plea by an alien to any felony or misdemeanor count, the court must advise such person of the grounds for deportation or denial of naturalization for such guilty plea. This communication must be recorded in the Court's record and the defendants would not be required to disclose his or her citizenship or immigration status at the time of entry of a plea. If the court fails to so advise the defendant, he or she will have the right to withdraw the guilty plea.

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 or denial of naturalization. Allowing guilty pleas taken in ignorance of major consequences constitutes a denial of elementary concepts of fairness and may also constitute a denial of due process.

Immigrant defendants need to be notified during the plea process for felonies and misdemeanors that pleading guilty may subject them to automatic deportation or denial of naturalization. Under this legislation, legal residents and immigrants would now have the opportunity to consider the harsh immigration consequences of pleading guilty to a minor offense, even if doing so would have provided no sentence or a limited fine.

Several other states have similar statutes or court rules requiring 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. It is time for New

York to follow the lead of its neighboring states, particularly given the state's large immigrant population.

Defendants should, at the very least, be made aware that pleading guilty to even a minor offense could result in their deportation or denial of naturalization, and should be fully aware of such consequences before making their decision.

Legislative history

2009-10: Referred to Codes (S.2254) 2005: Referred to Codes (S.2355) 2006: Referred to Codes (S.2355)

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 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.