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

BILL NUMBER:S1353

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 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

2013-2014: S.216 - REFERRED TO CODES 2011-2012: S.632 - CODES COMMITTEE DISCHARGED AND COMMITTED TO RULES 2009-2010: S.4399 (Schneiderman)/A.4963 - ADVANCED TO THIRD READING 2007-2008: A.4166 - reported referred to rules 2005-2006: A.6884 - referred to codes 2003-2004: A.6019 - reported referred to rules 2001-2002: A.7702 - passed assembly 1999-2000: S.4077(Velella)/A.7175 - REFERRED TO CODES/passed assembly

Fiscal implications for state and local governments

None.

Effective date

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