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Split New York Court of Appeals Ruling on SORA

May 12, 2010

sentencing.typepad.com: Split New York high court ruling.

New York Court of Appeals : SORA (sex offender registration act) and plea agreements.

Two cases — People v. Tara Gravino and People v. Robert W. Ellsworth — commonly ask whether the trial courts’ failure to advise the alleged sex offenders of a significant consequence to their guilty pleas rendered their pleas invalid. The first originated in Wayne County, the second in Chautauqua County, NY.

Rochester attorney Kathleen P. Reardon will represent Gravino, who argues SORA registration should be a direct — rather than collateral — consequence of a plea, and must be fully explained to a defendant before they agree to plead guilty.

Ellsworth argues a condition establishing terms of probation should be considered a direct consequence of his plea and that the court’s failure to advise him that “he would lose the fundamental right to live with his children” makes the plea “neither knowing nor voluntary.”
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In an interesting split opinion in NY v Gravino, No. 77 (NY May 11, 2010) (available here), the New York Court of Appeals rejected yesterday claims about the import of a defendant failing to know certain significant “collateral” consequences of a conviction when entering a plea. In so doing, the Gravino ruling spotlights some critical follow-up questions to the Supreme Court’s recent Padilla ruling that an attorney’s incompetent advice on immigration consequences of a plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Here is how the majority opinion in Gravino gets started and a key final passage from the court’s holding:

“We 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….

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 consequence been disclosed.”

Here is how the dissenting opinion in Gravino gets started and some key passages from its discussion:

“Because I believe that SORA certification and subsequent registration and the restriction of contact with one’s children as a condition of probation are direct consequences of a guilty plea of which a defendant must be informed to make that plea knowing, voluntary and intelligent, I respectfully dissent….

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.”…

Gravino’s certification as a sex offender was an automatic and immediate consequence of her conviction for rape in the third degree. Thus, I would hold that sex-offender certification is a direct consequence of Gravino’s guilty plea and, without informing Gravino that she would be subject to SORA certification, her guilty plea cannot be said to “represent[] a voluntary and intelligent choice among the alternative courses of action open to” her (North Carolina v Alford, 400 US 25, 31 [1970]).

Similarly, I would hold that a condition of probation that prohibits defendant Ellsworth from living with his children is a most significant and direct consequence of his guilty plea. I agree with the majority that “courts taking guilty pleas can not be expected to predict any and every potential condition of probation that might be recommended in the pre-sentence report” (majority op., at 15). It is hardly unforeseeable, however, that upon a conviction for course of sexual conduct with a child in the second degree, defendant would be forbidden, as a term of his probation, from living with or having contact with children, including his own.”

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