In People v. Harnett (3d Dept., 2/25/2010) (Malone Jr., J.) (3-2), a divided Third Department held that trial courts are not required to advise defendants who are entering guilty pleas to certain sex offenses subjects them to review and possible civil confinement under the Sex Offender Management and Treatment Act (SOMTA).
The defendant initially pled guilty to Sexual Abuse 1º. County Court sentenced him to a negotiated prison term of seven years, with ten years of postrelease supervision. On appeal, the defendant argued that his guilty plea was not knowingly, intelligently or voluntarily entered because the County Court failed to advise him that, pursuant to SOMTA, he could be confined or subjected to "intensive supervision" after the completion of his prison sentence.
The majority began its analysis with New York's general rule that "trial courts are required to advise defendants who plead guilty regarding the direct consequences of such plea[s], but they have no obligation to iterate every collateral consequence of the conviction" (emphasis added). See People v. Catu (Ct. App. 2005). Quoting Catu, the majority defined direct consequences as those having "a definite, immediate and largely automatic effect on [a] defendant's punishment[,]" while collateral consequences are those that "are peculiar to the individual and generally result from the actions taken by agencies the court does not control[.]"
Applying this rule, the majority listed several characteristics of the statute that warranted a conclusion that SOMTA is a collateral, not a direct, consequences of a guilty plea. First, the court noted that SOMTA proceedings were "expansive civil proceedings, which are entirely . . . independent of the original criminal action." The majority also observed that, while relevant sex offenders are necessarily subjected to notice and review by the Office of Mental Health (OMH), such notice and review do not guarantee confinement. Rather, the majority continued, confinement only occurs after, following notice and review, (1) an OMH case review team refers the offender to the Attorney General with an opinion that the offender requires confinement, (2) the Attorney General chooses to file a petition for confinement, (3) a court finds probable cause to believe that the offender requires confinement, and (4) a jury trial trial yields a verdict finding, by clear and convincing evidence, that the offender requires confinement. The majority noted that, even after such a trial, an offender may present additional evidence to rebut the verdict, requiring the court to find, by clear and convincing evidence, that the offender requires confinement. Finally, while observing in a footnote that the case "appear[ed] to be a case of first impression" in New York, the majority cited a list of other jurisdictions that supported its conclusion. The list included the First, Fourth, and Eighth Federal Circuit Courts of Appeal, as well as Arizona, California, Florida, Kansas, Illinois, Iowa, Massachusetts, Minnesota, and South Carolina state courts.
In a dissent authored by Justice Stein, a two-justice minority argued that trial courts should be required to inform potential sex offenders offering guilty pleas of their possible exposure to SOMTA review and confinement. The dissent relied on arguments of due process, fundamental fairness, and persuasive authority from New Jersey to support its conclusion. (JTR/LC)
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