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The judge did not mention any particular potential conditions of probation….cont

A New York Criminal Lawyer said that, by indictment filed on October 5, 2006, second defendant who was then 39 years old, was charged with one count of course of sexual conduct against a child in the first degree and one count of first-degree rape , based on allegations that he sexually abused a young girl from the age of seven until she reported the abuse at the age of 10. On April 10, 2007, second defendant pleaded guilty to one count of course of sexual conduct against a child in the second degree in exchange for a split sentence of six months in jail and 10 years of probation. At the time, he resided with his girlfriend and several children (although not the alleged victim) younger than 18 years old. The judge did not mention any particular potential conditions of probation during the plea colloquy.

A New York Rape Lawyer said that, after his guilty plea and before sentencing, Ellsworth was interviewed by a probation officer for purposes of a presentence report, completed on June 1, 2007. During this interview, second defendant “asked about the ramifications of being classified as a sex offender and being around children under the age of [18], specifically, his own children [who] reside[d] with him.” The probation officer told he that he would be forbidden from associating with any child under the age of 18, even his own children, as a condition of probation. According to the probation officer, he “questioned this,” and so he advised him “to consult with his attorney so that a motion could be made before the court for consideration.”

A New York Sex Crimes Lawyer said that, in November 2007, Ellsworth, represented by a new attorney, moved to vacate his judgment of conviction pursuant to Criminal Procedure Law ยง 440.10. In that motion, he argued that his trial attorney had provided inadequate assistance by “failing to adequately investigate his case and defenses and coercing him into accepting a plea deal” that was “unwanted,” apparently because he was prohibited from being around his minor children. He also claimed to be innocent of the charges. The People argued that his conclusory assertions were insufficient to entitle him to relief. County Court agreed, and denied the motion without a hearing.

The issue in this case is whether the defendants plea of colloquy undermines knowingly, voluntarily and intelligently the nature of a defendant’s guilty plea.

The court hold that because they are collateral rather than direct consequences of a guilty plea, SORA registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing. Put another way, a trial court’s neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant’s guilty plea.
The outcome of these appeals turns on the application of our precedent of a 1995 case decision. There, we emphasized that a trial court may accept a guilty plea only after fulfilling its constitutional duty to “ensure that the defendant has a full understanding of what the plea connotes and its consequences”. Although “the court is not required to engage in any particular litany when allocating the defendant,” due process mandates that “`the plea represents a voluntary and intelligent choice among the alternative courses of action opens to the defendant'”.

To Be Cont….

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