Requires notice of risk of deportation of non-citizens, prior to accepting plea to a misdemeanor or violation

BILL NUMBER:S632

Title of bill

An act to amend the criminal procedure law, in relation to requiring the court, prior to accepting a plea to a misdemeanor or violation, to advise the defendant of the risk of deportation if he or she is not a citizen

Purpose or general idea of bill

This bill requires notification of alien defendants during the plea process that pleading guilty to a misdemeanor or violation may subject them to automatic removal (deportation) or denial of naturalization.

Summary of specific provisions

This bill adds a new subdivision 5 to section 340.20 of the criminal procedure law, requiring alien defendants to be notified that pleading guilty to misdemeanors or violations may have immigration consequences. Such notification shall be on the record. For those courts not of record, the bill requires a writing affirming that the warning was given contemporaneous with the plea, and a form would suffice for this purpose.

Justification

In 1996, Congress made major changes to federal immigration law. Under the new federal law, legal immigrants and residents may be subject to automatic removal (deportation) even if they plead guilty to some minor offenses classified under N.Y. law as violations. Deportation may also be a threat for those whose proceedings do not result in a conviction under N.Y. law (i.e. entry of guilty plea to drug treatment on order of court as alternative to conviction and incarceration).

Unfortunately, defendants pleading guilty to these minor offenses are unaware of the harsh new federal immigration consequences of doing so. Because of the broad scope of the 1996 immigration law, defendants who have plead guilty to some minor offenses, even more than 25 years ago, are now subject to deportation. As a result, immigrant communities have lost confidence in state courts and the criminal justice system generally.

This bill requires defendants to be notified during the plea process for misdemeanors and violations that pleading guilty may subject them to automatic deportation or denial of naturalization. Legal residents and immigrants will 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 fine.

At least nine 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.

Defendants should, at the very least, be made aware that pleading guilty to some of these minor offenses could put them on a plane out of the country or worse -- removal to a detention center cell for an indefinite term while awaiting deportation. This bill, while providing no rights to illegal immigrants, provides legal immigrants and residents with the protection of making a plea with the understanding of its immigration consequences.

Legislative history

S.4077/A.7175 of 1999-2000 Passed Assembly A.7702 of 2001-2002 Passed Assembly A.6019 of 2003-2004 Rules Committee A.6884 of 2005-2006 Codes Committee A.4166 of 2007-2008 Codes Committee S.4399-A/A.4963-A of 2010

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the 90th day after enactment.