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May 12, 2010

Split New York high court ruling spotlights key post-Padilla issues

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 presentence 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.

Related posts on the recent SCOTUS Padilla ruling:

May 12, 2010 at 12:02 PM | Permalink


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the requirement to register as a sex offender is a huge direct consequence of a plea and the def should know about it It impacts where they can live, whether they can pick up their children at school, go to a park, be able to buy a house, etc. etc. It is often the biggest impediment to a client taking a plea because he doesn't want to register and bear the status of societal pariah.

bruce cunningham

Posted by: bruce cunningham | May 12, 2010 2:59:37 PM

interesting to note that the icky perv who repeatedly molested a child for three years got less time than the mother of 6 who served alcohol to and had sex with a 14 year old. i guess its fortunate for him that he only actually molested a child rather than possessing photos of children being molested.

i have to say that i find it a bit incredible that the icky perv defendant did not realize that being convicted of child molestation would limit his ability to spend time with his children. really what did he think would happen following a conviction for repeatedly molesting a little girl over a three year period?

the mother seems to have a bit more of an argument, but i was kind of under the impression that everyone was aware of the sex offender registry. it seems odd that her attorney wouldn't tell her about that - of course, right after telling her if she plead guilty to the charge she'd be branded an "icky pervette," I'd have to tell her that if she went to trial, she'd probably be given death by stoning due to being a bad mother. well maybe death by stoning is a bit of an exaggeration ;)

still, this opinion seems to provide some evidence for that woman down in florida - better to be a icky perv who repeatedly molests a little girl than to be a bad mother. that the court rights an opinion with thoes two cases togethr and it acts like there is no big deal is the type of result which only a supremacy claus can love :P

ginny :)

Posted by: virginia | May 13, 2010 4:42:04 PM

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