As experienced criminal defense lawyers we are all too familiar with New York’s onerous Sex Offender Registration Act (SORA). SORA requires the registration of individuals convicted in New York State of certain sex offenses and demonstrates what could happen when inexperienced defense attorneys fail to inform their clients of all of the consequences of a plea. . In People v. Gravino, the 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 for providing alcohol to underage children and having sex with a 14-year-old boy. The rape charge was a registerable offense under SORA.
The defendant ultimately agreed to plead guilty to one count of third-degree rape in exchange for a sentence of 1 1/2 to 3 years in prison. During her plea discussions with the court and at the time of her plea allocution, defendant was never informed by the court that she would be required to register as a sex offender as a result of being convicted of third degree rape. At sentencing, defendant moved to withdraw her plea claiming a conflict of interest with her current counsel and that she experienced “nothing but misrepresentation”. The court denied her application and proceeded with the sentencing; imposed the agreed sentence and found defendant to be a sex offender.
Defendant appealed to the Fourth Department of the Appellate Division arguing, among other things, that her plea was not voluntary because the court did not make her aware of the sex offender registration requirements under SORA. The First Department disagreed, holding that the “lack of awareness prior to sentencing” of the SORA sex offender registration requirements did not detract from the voluntariness of defendant’s guilty plea.
The New York Court of Appeals affirmed the Fourth Department holding that the sex offender registration requirement was a collateral consequence that the court was not required to inform the defendant of. A sentencing court, opined the Court of Appeals, must only inform a defendant of direct consequences of a sentence imposed by the court and not collateral consequences typically imposed by another agency. Further, held the Court, SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes. Thus, SORA registration is not a “direct consequence” of a conviction.
The lesson to be learned from this case is that defense counsel must thoroughly review all collateral consequences with their clients before they agree to plead guilty to any charge. It is not the court’s responsibility to inform the defendant of all, or any, possible collateral consequences of pleading guilty.
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