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CPLR article 440 motion


This is a proceeding wherein the court holds that registration and the terms and conditions of probation under the Sex Offender Registration Act are not subjects that a trial court must address at the plea hearing because they are collateral and are not direct consequences of a guilty plea. The court notes that the 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.

Defendant TG:

On 6 February 2007 by indictment, defendant TG was charged with rape in the second degree under Penal Law § 130.30[1], endangering the welfare of a child under Penal Law § 260.10[1], and unlawfully dealing with a child in the first degree (two counts) under Penal Law § 260.20[2] for providing alcohol to underage children and having sex with a 14-year-old boy. TG 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, TG pleaded guilty on 16 August 2007 to one count of third-degree rape under Penal Law § 130.25[2] in exchange for a sentence of 1 1/2 to 3 years in prison. During the plea colloquy, TG told County Court that she was satisfied with her attorney. The judge did not inform TG that she would have to register as a sex offender under the Sex Offender Registration Act as a consequence of her conviction.

On 14 September 2007, TG appeared for sentencing. She asked to “pull her plea back on the grounds of a conflict of interest with” her assigned counsel. She told the judge that she had experienced “nothing but misrepresentation,” and complained that the attorney-who, she stated, had previously represented an ex-husband in “a custody battle against her”-had not interviewed potential witnesses.

The judge responded “We went over that before, didn’t we?” TG did not answer directly. Instead, she repeated that she felt as if she had been “misrepresented,” and not “treated fairly.” The prosecutor, when asked by the judge if he wished to comment on TG’s application to withdraw her guilty plea, replied that the judge was “correct” and that the parties had “previously addressed this issue and covered it completely.” Further, there were no “new grounds or new evidence” to “justify the withdrawal of the plea.”

The County Criminal Court denied TG’s application. She was advised that she could later move for postconviction relief, for which he would assign her new counsel. Next, she was sentenced 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. The prosecutor asked the judge to certify TG as a sex offender, which he did.

TG appeals contending that County Criminal Court should have conducted an inquiry after she moved to withdraw her guilty plea on conflict-of-interest grounds. She contends that the guilty plea was involuntary because the judge did not tell her that she would have to register as a sex offender.

The court disagreed with TG. First, the Appellate Division held that County Court did not abuse its discretion because TG’s specifications of “ineffective assistance” concerned matters outside the record which must be raised by way of a CPLR article 440 motion. Further, the court concluded that TG’s “lack of awareness prior to sentencing” of the SORA registration requirement did not detract from her guilty plea’s voluntariness. She was granted leave to appeal. The court affirms.

Defendant EL:

On 5 October 2006 by indictment, defendant EL, who was then 39 years old, was charged with one count of course of sexual conduct against a child in the first degree under Penal Law § 130.75[1][a] and one count of first- degree rape under Penal Law § 130.35[3] based on allegations that he sexually abused a young girl from the age of seven until she reported the said sexual abuse at the age of 10.

On 10 April 2007, EL 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, EL 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.

After his guilty plea and before sentencing, Ellsworth was interviewed by a probation officer for purposes of a presentence report, completed on 1 June 2007. During this interview, EL 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 resided with him. The probation officer told EL 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, EL questioned this, and so he advised him to consult with his attorney so that a motion could be made before the court for consideration.”

However, on 18 June 2007, EL appeared for sentencing and his attorney moved to withdraw the guilty plea and proceed to trial. EL’s attorney also mentioned that the judge, with the prosecutor’s consent, had offered EL an alternative sentence-two years in prison to be followed by two years of postrelease supervision-on June 11th, his originally scheduled sentencing date, and that EL had been given one week to consider this option.

Because the prosecutor who had handled the case was not present, County Court adjourned the sentencing hearing until 25 June 2007, and reserved on the motion. When EL appeared on that date, though, his attorney withdrew the motion, and indicated that the “6/10” split sentence originally promised EL was what he wanted to do. When County Court asked EL if there was anything he wanted to say on his own behalf, he only inquired as to whether he could serve his time in jail on weekends.

Thereafter, the judge sentenced EL as promised, and handed him a written copy of the terms and conditions of his probation. This document, entitled “Order and Conditions of Adult Probation,” ordered EL to comply with three general and 18 special conditions as well as any others which the Court may impose at a later date. Special Condition number eight states as follows: “Do not initiate, maintain or establish contact with any child under the age of 18, nor attempt to do so, nor reside in the same residence with minor children, without permission of the Court or your probation officer.”

In November 2007, EL, represented by a new attorney, moved to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10. In that motion, EL 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. EL also claimed to be innocent of the charges. The People argued that EL’s conclusory assertions were insufficient to entitle him to relief. County Court agreed, and denied the motion without a hearing.

EL also appealed his judgment of conviction on the ground that his guilty plea was involuntary. A unanimous Appellate Division concluded, however, that his guilty plea was knowing, voluntary and intelligent. EL was granted leave to appeal and the court affirms.

The Ruling of the Court:

The outcome of these appeals turns on the application of our precedent in People v. Ford. The court 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 allocuting the defendant, due process mandates that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant as held in North Carolina v. Alford.

Because a criminal court is in no position to advise on all the ramifications of a guilty plea, though, the court observed in Ford 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, the court defined a direct consequence as having a definite, immediate and largely automatic effect on a defendant’s punishment as in Cuthrell v. Director, Brady v. United States.

The court 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, the court concluded that the trial court was under no duty to warn the defendant of the possibility of deportation before accepting his guilty plea 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.

The court noted that postrelease supervision was a component of a sentence, and whereas the term of supervision to be imposed might vary depending on the degree of the sex crimes and the defendant’s criminal record, imposition of supervision was mandatory and thus had a definite, immediate and largely automatic effect on a defendant’s punishment as in Ford. The court recognized that postrelease supervision was “significant” in light of the conditions to which a defendant might be subject after release from prison.

The court concludes that a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action.

Postrelease supervision is, by statute, a component element of a sentence, which is why a judge must pronounce the period of postrelease supervision at sentencing as held in People v. Sparber. It is thus an integral part of the punishment meted out upon a defendant’s conviction of a crime. By contrast, the court has 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, like arson, SORA is a remedial statute intended to prevent future crime as held in Matter of North v. Board of Examiners of Sex Offenders of State of N.Y.

Similarly, the court has 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 offense designed not to punish, but rather to protect the public as in People v. Windham. 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 under Correction Law § 168-l, subject to judicial determination under Correction Law § 168-n. 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 postrelease supervision, are not part of the punishment imposed by the judge; rather, SORA registration and risk-level determinations are nonpenal consequences that result from the fact of conviction for certain crimes. Thus, SORA registration is not a “direct consequence” of a conviction within the meaning of Ford. Indeed, virtually every jurisdiction to address the question has likewise concluded that sex offender registration is a collateral consequence of a guilty plea as held in Magyar v. State, State v. Bollig.

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.”

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