SORA and plea conditions are collateral consequences

The familiar rule is that a plea colloquy need not advise a defendant of consequences that are "collateral" to the guilty plea.  Rather, only the so-called "direct" consequences must be told to the defendant.  This week, in two companion cases—People v. Gravino (Ct. App. 5/11/2010) (Read, J.) (4-3) and People v. Ellsworth (Ct. App. 5/11/2010) (Read, J.) (4-3)—the Court of Appeals addressed two common consequences of guilty pleas: SORA registration and the specific terms or rules of probation, respectively.  The court held that both are collateral, not direct, consequences.

Regarding SORA, the court was particularly persuaded by SORA's status as a preventative statute.  It is not a criminal punishment but, instead, a means to protect the community from dangerous offenders.  Moreover, the specific burden on a SORA defendant depends on his or her risk classification.  An offender's classification is not known at the time of plea "and therefore can not have a 'definite, immediate and largely automatic
effect on [a] defendant's punishment' (Catu, 4 NY3d at 244,
quoting Ford, 86 NY2d at 403)."

In Ellsworth, the defendant was prohibited by the terms of his probation from having contact with his children.  Here, the court again noted that the conditions of probation are not fixed or automatic.  In fact, they can vary throughout an probationer's sentence.  "Accepting Ellsworth'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."  Looking at Catu—the case that held that PRS must be disclosed to a defendant during the plea colloquy—the majority noted that the decision itself never suggested that a judge was required to speculate about the terms of that supervision. 

Nevertheless, the Court of Appeals added an important caveat—one that all parties should bear in mind, particularly when dealing with unique or special terms of probation:

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 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."

Judge Ciparick, writing for the dissent, made the following points.  First, SORA registration is a direct consequence, since it flows automatically from the statute.  The specific terms will vary, but not the imposition of some kind of registration.  "While it is true that we have held that the particular risk-level
determination
made for a specific defendant is a collateral
consequence not subject to attack on direct appeal from a judgment of
conviction . . . here defendant challenges not the specific risk-level
determination but the fact that she was certified a sex offender subject
to SORA requirements." With respect to probation conditions, the particular term at issue—forbidding the defendant from having contact with his children—was foreseeable but nevertheless troubling, given the constitutional issues.

Both the majority and dissent continued to use the "direct" versus "collateral" test from People v. Ford, a case involving immigration consequences.  Of course, Ford has now been overruled by the U.S. Supreme Court's decision in Padilla v. Kentucky.  The majority and dissent have battling footnotes about the effect of Padilla on the Ford framework.  In Padilla, the Court noted that it had never embraced the distinction between direct and collateral consequences.  It also did not reject it explicitly, however.  That case turned, instead, on the very unique circumstances surrounding immigration law.  But as Judge Ciparick noted, "While it is true that Padilla dealt with the duty of counsel,
rather than the duty of the courts, to inform a criminal defendant about
deportation, the rationale employed by the Court in rejecting the
direct/collateral consequence dichotomy applies with equal force in
determining the voluntariness of a guilty plea where the court has
failed to advise the defendant of SORA registration, which is also a
civil penalty 'difficult to divorce . . . from [a] conviction'."  (LC)

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