People v. Harnett

• Decision Date: 10 February 2011
• Citation: 920 N.Y.S.2d 246,16 N.Y.3d 200,945 N.E.2d 439,2011 N.Y. Slip Op. 00744
• Parties: The PEOPLE of the State of New York, Respondent,v.David M. HARNETT, Appellant.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 200

945 N.E.2d 439

920 N.Y.S.2d 246

2011 N.Y. Slip Op. 00744

The PEOPLE of the State of New York, Respondent,

v.David M. HARNETT, Appellant.

Court of Appeals of New York.

Feb. 10, 2011.

Brian M. Callahan, Duanesburg, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Derek Champagne, District Attorney, White Plains (Steven A. Bender, Morrie Kleinbart and Richard Longworth Hecht of counsel), for District Attorneys Association of the State of New York, amicus curiae.New York Civil Liberties Union Foundation, New York City (Andrew L. Kalloch, Katharine E.S. Bodde, Corey Stoughton, Christopher Dunn and Arthur Eisenberg of counsel), for New York Civil Liberties Union, amicus curiae.Alfred O'Connor, Albany, for New York State Defenders Association, amicus curiae.

OPINION OF THE COURT

SMITH, J.

We hold that failing to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) does not automatically invalidate the guilty plea.

I

Defendant pleaded guilty to sexual abuse in the first degree, consisting of sexual contact with a person under 11 years old (Penal Law § 130.65[3] ). During the plea allocution, defendant was told that he would be sentenced to seven years in prison, with a period of postrelease supervision to be set by the court between 3 years and 10 years; that he would be subject to an order of protection for 15 years; and that he would be required to register as a sex offender. No mention was made of SOMTA (Mental Hygiene Law § 10.01 et seq.).

Defendant did not move, either before or after sentence, to withdraw his plea. After being sentenced, however, he appealed to the Appellate Division, arguing that his plea was not knowing, voluntary and intelligent because he had not been warned of its possible consequences under SOMTA. The Appellate Division affirmed, with two Justices dissenting (72 A.D.3d 232, 894 N.Y.S.2d 614 [2010] ). A Justice of the Appellate Division granted leave to appeal, and we now affirm.

II

We begin by describing the consequences under SOMTA that could result from defendant's plea.

Defendant's conviction and incarceration made him a “detained sex offender” subject to SOMTA (Mental Hygiene Law § 10.03[g] ). That status becomes significant as the end of an offender's prison term approaches. When a detained sex offender “is nearing an anticipated release,” a notice to that effect is given to the Attorney General and the Commissioner of Mental Health (Mental Hygiene Law § 10.05[b] ). The offender's case is then reviewed by Office of Mental Health (OMH) staff and, if the staff finds further action appropriate, by a three member “case review team” including qualified professionals (Mental Hygiene Law § 10.05[a], [d] ). The case review team must “consider whether the respondent is a sex offender requiring civil management,” and if it finds that he is it give notice both to the offender and to the Attorney General (Mental Hygiene Law § 10.05[e], [g] ).

The Attorney General then decides whether to file a “sex offender civil management petition” in court (Mental Hygiene Law § 10.06[a] ). If he does so, a series of proceedings follows, including a hearing without a jury on whether there is

[945 N.E.2d 441 , 920 N.Y.S.2d 248]

“probable cause to believe” that the person in question is “a sex offender requiring civil management” (Mental Hygiene Law § 10.06[g] ) and a jury trial at which the jury decides whether the offender “suffers from a mental abnormality” (Mental Hygiene Law § 10.07 [a] ). A person found to be a detained sex offender who suffers from a mental abnormality must be classified by the court as either “a dangerous sex offender requiring confinement” or “a sex offender requiring strict and intensive supervision” (Mental Hygiene Law § 10.07[f] ). A detained sex offender in the former category “shall be committed to a secure treatment facility ... until such time as he or she no longer requires confinement” ( id.).

SOMTA was enacted in 2007. A 2010 report by the Attorney General provides some information on how it has worked in practice (New York State Office of the Attorney General, A Report on the 2007 Law that Established Civil Management for Sex Offenders in New York State [Apr. 13, 2010], available at http:// www. ag. ny. gov/ bureaus/ sexual_ offender/ pdfs/ April %?202010 % ?20Yearly %?20Report. pdf). The report says that, during SOMTA's first three years, OMH screened 4,399 new cases, of which 383 were ultimately referred for litigation. As of the date of the Attorney General's report, 123 people had been committed to a secure facility under SOMTA. In 79 cases, an outpatient regime of strict and intensive supervision and treatment was imposed, and litigation was continuing in a number of other cases. Making allowance for the cases still in the pipeline, it seems that, at most, about six percent of those detained sex offenders whose cases came up in the first three years were or were likely to be subjected to civil commitment.

III

Defendant argues that the failure to advise him of the SOMTA consequences of his conviction invalidated his plea because (1) they are direct consequences of the plea, and (2) whether direct or collateral, they are so important that their nondisclosure rendered the plea proceedings fundamentally unfair. Defendant's first argument is plainly without merit. The second raises a serious question, but does not justify the result—automatic invalidation of the plea—that defendant seeks.

Direct versus Collateral Consequences

Our cases have drawn a line between the direct and collateral consequences of a plea ( see People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995]; People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005]; People v. Gravino, 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ). The importance of the distinction is that a trial court “ must advise a defendant of the direct consequences” ( Catu, 4 N.Y.3d at 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [emphasis added] ). A court's failure to comply with that obligation “requires reversal” because harm-less error analysis is inapposite ( id. at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081). The possibility of supervision or confinement under SOMTA is clearly on the collateral side of the line.

Direct consequences, as we explained in Ford, are those that have “a definite, immediate and largely automatic effect on defendant's punishment” (86 N.Y.2d at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265). Consequences that are “peculiar to the individual's personal circumstances and ... not within the control of the court system” have been held to be collateral ( id.). The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant's sentence: a term of probation

[945 N.E.2d 442 , 920 N.Y.S.2d 249]

or imprisonment, a term of post-release supervision, a fine. Our cases have identified no others. We held in Ford and Gravino that consequences that may be quite serious—possible deportation in Ford, Sex Offender Registration Act (SORA) requirements and onerous terms of probation in Gravino—are collateral.

These decisions compel a holding that SOMTA consequences are collateral also. Indeed, Gravino is indistinguishable here, for all the factors that led us to hold SORA registration a collateral consequence apply equally, or a fortiori, to SOMTA. SOMTA, like SORA, is not a penal statute designed to punish a past crime, but a remedial one designed to prevent a future crime ( see Gravino, 14 N.Y.3d at 556, 902 N.Y.S.2d 851, 928 N.E.2d 1048); with SOMTA, as with SORA, important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court's control ( see id.); and with SOMTA, even more than with SORA, the consequences of a defendant's plea are far from automatic. Indeed, experience to date indicates that the large majority of people who are “detained sex offenders” as SOMTA defines the term will suffer no consequences from that designation at all.

Fairness

Defendant's stronger argument is that SOMTA consequences, whether collateral or not, are simply too important to be left out of a plea allocution. He relies primarily on a New Jersey case, State v. Bellamy, 178 N.J. 127, 835 A.2d 1231 (2003).

The facts of Bellamy did indeed raise serious fairness questions. Bellamy pleaded guilty to a sex crime in exchange for the State's agreement to recommend an 18–month jail sentence. When he pleaded, he had already served a significant part of that time; when sentenced, he was scheduled to be released in a bit more than two months. But a week before his release date the New Jersey Attorney General began a proceeding under the New Jersey Sexually Violent Predator Act that resulted in Bellamy's commitment. At the time of the New Jersey Supreme Court's decision three years later, he was still incarcerated.

These facts form the background for the Bellamy court's holding “that fundamental fairness requires that prior to accepting a plea to a predicate offense, the trial court must inform a defendant of the possible consequences under the [Sexually Violent Predator] Act” (178 N.J. at 131, 835 A.2d at 1234). That holding, however, did not lead automatically to the nullification of Bellamy's plea. Rather, the court remanded the case to permit a motion for plea withdrawal, which it said should be granted “[i]f the trial court is satisfied that defendant did not understand the consequences of his plea” (178 N.J. at 140, 835 A.2d at 1239).

Certainly, if facts like those of Bellamy were before us, the argument that the plea was involuntary would have to be taken seriously. And to avoid the possibility that such cases will arise, we recommend to trial courts that the possible effects of SOMTA be explained to...