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

Similarly, we have held that “a SORA risk-level determination is not part of a defendant’s sentence it is a collateral consequence of a conviction for a sex crimes offense designed not to punish, but rather to protect the public. The extent and nature of the conditions imposed on a SORA registrant — i.e., the consequences of SORA registration — turn upon the risk classification. The Board of Examiners of Sex Offenders, an administrative agency, recommends a released offender’s risk classification based on the SORA Guidelines, subject to judicial determination. These consequences are not known at the time a court accepts a guilty plea, and therefore cannot have a “`definite, immediate and largely automatic effect on a defendant’s punishment’.

Unquestionably, SORA imposes significant burdens on a registrant, regardless of risk level. But we have consistently held that SORA requirements, unlike post release supervision, are not part of the punishment imposed by the judge; rather, SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes.

We decide today that 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 non-disclosure 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 criminal consequence been disclosed.

As the record demonstrates, neither of the cases before us 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.” Marijuana was not found.

Accordingly, the court held that orders of the Appellate Division should be affirmed in both of these cases.

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