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The judge did not mention any particular potential conditions of probation


A New York Sex Crimes Lawyer said that, by indictment filed on February 6, 2007, first defendant was charged with rape in the second degree, endangering the welfare of a child, and unlawfully dealing with a child in the first degree (two counts) for providing alcohol to underage children and having sex with a 14-year-old boy. First defendant was a 34-year-old mother of six in September 2006, when the events underlying the indictment took place. After unsuccessfully moving to suppress a statement in which she made an admission, defendant pleaded guilty on August 16, 2007 to one count of third-degree rape in exchange for a sentence of 1½ to 3 years in prison. During the plea colloquy, defendant told County Court that she was satisfied with her attorney. The judge did not inform her that she would have to register as a sex offender under the Sex Offender Registration Act (SORA) as a consequence of her conviction.

A New York Criminal Lawyer said that, the County Court denied her application. He advised her, however, that she could later move for post conviction relief, for which he would assign her new counsel. Next, the judge sentenced her as promised. The clerk then brought up the sex offender registration fee of $50 and the supplemental sex offender fee of $1,000, which the judge imposed; and the prosecutor asked the judge to certify her as a sex crime offender, which he did. On appeal to the Appellate Division, defendant argued that County Court should have conducted an inquiry after she moved to withdraw her guilty plea on conflict-of-interest grounds; and that her guilty plea was involuntary because the judge did not tell her that she would have to register as a sex offender.

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 § 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'”.

Because “a criminal court is in no position to advise on all the ramifications of a guilty plea,” though, we observed in the said case that courts have traditionally drawn a distinction between direct consequences of a guilty plea, of which a defendant must be apprised during the plea colloquy, and collateral consequences, which the trial judge may, but need not, mention. Further, we defined a direct consequence as having “a definite, immediate and largely automatic effect on a defendant’s punishment”.

Thus, we held in Ford that “the failure to warn of collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control”. Specifically, we concluded that the trial court was under no duty to warn the defendant of the possibility of deportation before accepting his guilty plea3 because “deportation was a collateral consequence of conviction peculiar to the individual’s personal circumstances and one not within the control of the court system”.

We agreed. We noted that post release supervision was a component of a sentence, and “whereas the term of supervision might vary depending on the degree of the crime and the defendant’s criminal record, imposition of supervision [was] mandatory and thus `has a definite, immediate and largely automatic effect on a defendant’s punishment’. We recognized that post release supervision was “significant” in light of the conditions to which a defendant might be subject after release from prison — e.g., curfew, travel restrictions, substance abuse testing and treatment, residential treatment — and the risk of re-incarceration for disobedience of release conditions.

We therefore concluded that “a defendant pleading guilty to a determinate sentence must be aware of the post release supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action”; and decided that the trial court’s failure to advise of his obligation to serve a five-year term of post release supervision required reversal of his conviction . Further, although the trial court and the Appellate Division had both engaged in harmless-error analysis, “refusing] to vacate plea on the ground that he did not establish that he would have declined to plead guilty had he known of the posrelease supervision” we specifically rejected this approach. No drug was found and possession of a weapon was not an issue.

First defendant protests that she “was not informed that she was required to register as a sex offender until she was being led away to prison following her sentencing”; and therefore her guilty plea was not knowing, voluntary and intelligent. She argues that SORA registration, like pos trelease supervision, “should fall within the realm of a `direct’ consequence” of a guilty plea, principally “because of the ramifications of being identified as a sex offender.” She contrasts the “abbreviated periods” of post release supervision with the SORA requirement for annual registration and verification for a minimum period of 20 years (level one sex offenders) to a maximum period of lifetime (level two and three sex offenders) (Correction Law § 168-h), subject to felony penalties for failure to comply (Correction Law § 168-t).

Post release supervision, however, is, by statute, a component element of a sentence, which is why a judge must pronounce the period of post release supervision at sentencing; it is thus an integral part of the punishment meted out upon a defendant’s conviction of a crime. By contrast, we have observed that SORA “is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime”.

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.

If your are charge of a sex crime, seek the representation of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates in order to defend your day in court.

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