Finally, as the Appellate Division pointed out, EG’s claim of ineffective assistance of counsel brings up matters not apparent from the face of the record, which are therefore properly fleshed out by affidavit in support of a CPL 440.10 motion rather than raised on direct appeal.
EL, a level three sex offender, argues that County Court’s authority to exercise control over his ability to have contact with his children is a direct consequence of his guilty plea within the meaning of Ford and the holding of Catu. He alleges that the judge erred for not informing him during the plea colloquy that he “would lose the fundamental right to have any contact, or live with” his young children.
But criminal courts taking guilty pleas cannot be expected to predict any and every potential condition of probation and arraignment that might be recommended in the presentence report-an impossible task given the individualized nature of probation supervision. Here, as noted earlier, the judge ultimately imposed three general and 18 special conditions of probation. Moreover, these conditions may be modified or enlarged by the court at any time before the expiration or termination of the period of probation. Indeed, one of the special conditions acknowledges the judge’s discretion to require EL to comply with unspecified additional conditions later on. Accepting EL’s argument would convert every plea colloquy where probation is part of the sentence into a conjectural and contingent exercise, potentially requiring at least partial reallocution at sentencing. It might also create a disincentive for the offender to cooperate fully with the preparer of the presentence report, lest more onerous conditions than those provisionally identified be recommended.
In Catu the court held that postrelease supervision is a direct consequence of a conviction and therefore a defendant must be advised of the fact and length of postrelease supervision during the plea colloquy in order for a guilty plea to be knowing, voluntary and intelligent. The court did not suggest that the judge was required to speculate on the conditions to which a defendant might be subject after release from prison. Likewise, it was sufficient here that EL was made aware during the plea colloquy that his sentence would include a 10-year period of probation murder.
SORA registration and the terms and conditions of probation are not direct consequences of a plea-in other words, that the judge’s failure to mention them does not, by itself, demonstrate that a plea was not knowing, voluntary and intelligent. It does not necessarily follow, though, that nondisclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed.
As the record demonstrates, neither of the cases before the court fits this description, and indeed such cases will be rare. Undoubtedly, in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long. But it may occasionally happen that a defendant, moving to withdraw his plea promptly after disclosure of the facts in question, can convincingly show that the newly discovered information, if known at the time of the plea, would have caused a change of heart. Where that is true, the motion to withdraw the plea will not be defeated simply by labeling a consequence “collateral.”