The entrance to the Varick Street Immigration Court in Manhattan. (Photo: David Handschuh/NYLJ)

Gov. Andrew Cuomo and lawmakers in New York are set to advance legislation as part of the state budget to protect undocumented immigrants convicted of Class A misdemeanors from deportation by limiting the maximum sentence for those charges to 364 days—rather than one year.

The proposal was included in the first of many bills expected to be introduced Thursday night that will eventually make up the entirety of the state budget, which lawmakers are set to pass on Sunday.

The one-day sentence reduction for Class A misdemeanors will allow undocumented immigrants to avoid triggering deportation proceedings, which can begin when a defendant is handed a sentence of one year or longer.

The idea has been proposed by Assemblyman Marcos Crespo, D-Bronx, for the last three years but hadn't made much progress during that time. Cuomo included it in his executive budget proposal in January, after which it gained support among more Democrats in the Legislature.

Chances of the bill becoming law in years past were unlikely because Republicans controlled the state Senate. Democrats took a firm majority in the chamber this year for the first time in nearly a decade, which breathed new life into the legislation. It's sponsored in the Senate by state Sen. Jessica Ramos, D-Queens.

The text of the bill is relatively straightforward. It would change the state penal law to reduce the maximum sentence for Class A misdemeanors in New York to 364 days. A few examples of charges at that level include petit larceny and endangering the welfare of a child, but there are countless other offenses with that status.

It also would benefit undocumented immigrants who received a one-year sentence on Class A misdemeanor charges before the bill became law. The legislation provides that anyone sentenced to one year in jail on a Class A misdemeanor charge before that time will have their sentence automatically reduced to 364 days.

The bill also would allow defendants to ask the court to set aside their sentence if “collateral consequences,” such as a risk of deportation, were involved. That would be useful in cases where an immigrant chose to forego negotiating with prosecutors on a plea deal to have the charges against them reduced.

Defendants often take plea deals to have the charges against them, and consequently the sentence, reduced. In the case of undocumented immigrants, they may have been faced with deportation anyway, if they chose to plead a more serious charge down to a Class A misdemeanor. The legislation will allow immigrants to plead charges down without that risk of deportation.

The legislation also would allow judges, with the consent of prosecutors, to vacate or modify the judgment against a defendant. They could also allow a new trial wherein the defendant would enter a plea to the same offense so the court could apply a lower sentence.

The bill was supported by Albany County District Attorney David Soares, who is president of the District Attorneys Association of the State of New York. Soares said in an interview in February with the New York Law Journal that it was a “no-brainer” for him, personally.

The legislation was supported by the New York City Bar Association, which issued a report supporting it in 2018. The bill is expected to be approved by lawmakers as part of the state budget Sunday evening.

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