AD4 order dated November 10, 2011, affirming judgment of conviction. Decision below: 89 A.D.3d 1443, 932 N.Y.S.2d 757. Read, J., granted leave March 5, 2012.

ISSUE PRESENTED: Whether a mandatory consecutive sentence pursuant to P.L. §70.25 (2-a) is a direct consequence of a guilty plea, so that the trial court’s failure to advise the defendant that the promised sentence would run consecutively to an undischarged, previously-imposed sentence renders the guilty plea unknowing and involuntary. (Assigned counsel: Timothy P. Donaher, Monroe County PD, 10 North Fitzhugh St., Rochester, N.Y. 14614.)

Issue before the Court:  Whether a plea is unknowing and involuntary if the court fails to inform the defendant that his sentence will (by operation of law, see Penal Law § 70.25(2-a)) be run consecutively to a previously imposed undischarged sentence?

Held:  In a 4-1 decision (Judge Rivera did not participate and Judge Jones’ seat remains vacant), the Court held that the consecutive nature of the new sentence is “a collateral rather than direct consequence,” so no mention of it needed to have been made during the plea allocution.

CAL observes:  This case is one in a series of decisions by the Court delineating what information a defendant needs to know before pleading guilty.  While a defendant must be informed of the post-release supervision component of his sentence (People v. Catu (2004)), he need not be informed of the conditions of probation (Ellsworth (2010)), that the conviction will require SORA registration (People v. Gravino (2010)), or that his conviction may lead to civil confinement (People v. Harnett (2011).  The decision is interesting in that the Court retains the “collateral rather than direct” dichotomy even if the face of the United States Supreme Court’s recognition in Padilla v. Kentucky (2010) that such a distinction is “ill-suited” to evaluating the information that must be conveyed to a defendant considering a guilty plea.  The Court’s continued reliance on its decision in People v. Ford (1995) is surprising given the Padilla decision holding that counsel is ineffective in not informing a defendant about the immigration consequences of conviction.  Notably, Harnett, which was decided after Padilla, left open the possibility that some “consequences, whether collateral or not, are simply too important to be left out of a plea allocution”; that recognition seems missing from the Court’s analysis in this case.