People v. Harnett

72 A.D.3d 232, 894 N.Y.S.2d 614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2010
• Status: Published

Opinions

OPINION OF THE COURT

Malone Jr., J.

Pursuant to a plea agreement, defendant pleaded guilty to sexual abuse in the first degree, waived his right to appeal and was thereafter sentenced to an agreed-upon prison term of seven years, with 10 years of postrelease supervision. In addition, County Court entered an order of protection in the victim’s favor for a period of 15 years. Defendant appeals.

Defendant contends that his guilty plea was not knowingly, intelligently or voluntarily entered because County Court did not advise him prior to the entry of that plea that a sex offense conviction subjects him to the provisions of the Sex Offender Management and Treatment Act (see Mental Hygiene Law art 10 [hereinafter SOMTA]), which could result in confinement or intensive supervision beyond the expiration of his prison sentence. It is well settled that trial courts are required to advise defendants who plead guilty regarding the direct consequences of such plea, but they have no obligation to iterate every collateral consequence of the conviction (see People v Catu, 4 NY3d 242, 244 [2005]; People v Ford, 86 NY2d 397, 405 [1995]). “Collateral consequences are peculiar to the individual and generally result from the actions taken by agencies the court does not control[, whereas a] direct consequence is one which has a definite, immediate and largely automatic effect on [a] defendant’s punishment” (People v Catu, 4 NY3d at 244 [internal quotation marks and citation omitted]).

It is important to initially note that SOMTA proceedings are expansive civil proceedings, which are entirely separate from and independent of the original criminal action.¹ Although any person qualifying as a “[d]etained sex offender” (Mental Hygiene Law § 10.03 [g]), such as defendant, is necessarily subjected to the initial notice provision of SOMTA (see Mental Hygiene Law § 10.05), such notice does not automatically result in an ultimate finding that the person is a “[d] anger ous sex offender requiring confinement” (Mental Hygiene Law § 10.03 [e]). Specifically, SOMTA provides that, upon notice by an authorized agency that a person who may be a detained sex offender is about to be released from incarceration, a multidisciplinary staff at the Office of Mental Health will conduct a preliminarily review to determine whether that person should be further evaluated by a case review team (see Mental Hygiene Law § 10.05 [d]). If the person is referred to a case review team, and if that team finds, in its opinion, that the person requires civil management, the Attorney General is notified and provided with a report of a psychiatrist opining whether that person has a “mental abnormality” (Mental Hygiene Law § 10.05 [e]; see Mental Hygiene Law § 10.03 [i]). The Attorney General may then elect to file a sex offender civil management petition (see Mental Hygiene Law § 10.06 [a]), and the court before which that petition is pending must then conduct a hearing “to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management” (Mental Hygiene Law § 10.06 [g]). If the court finds that such probable cause exists, “the court shall conduct a jury trial to determine whether the respondent is a detained sex offender who suffers from a mental abnormality,” which finding must be established by clear and convincing evidence (Mental Hygiene Law § 10.07 [a]; see Mental Hygiene Law § 10.07 [d]). If such finding is made after the trial, the parties are afforded the opportunity to present additional evidence and the court must determine, again by clear and convincing evidence, “whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision” (Mental Hygiene Law § 10.07 [f]).

Considering the foregoing lengthy SOMTA process—with its numerous civil procedural steps that must be followed before a final determination is made—this Court finds that it cannot be reasonably said that the potential for the future civil confinement or intensive supervision of defendant is an immediate, definite or automatic result of his guilty plea (see People v Catu, 4 NY3d at 244). Notably, the relevant determinations will not be based solely on the admissions that defendant made at the time of his guilty plea but, rather, will be based upon the particular circumstances of defendant’s criminal history, his mental health at the time of his anticipated release and other factors to be ascertained during the SOMTA proceedings. We therefore find that the potential for either civil confinement or supervision pursuant to SOMTA is a collateral consequence of a guilty plea and, therefore, the current state of the law does not require that defendants be informed of it prior to entering a plea of guilty.²

Finally, we are not convinced that County Court’s entry of a more restrictive order of protection than was contemplated during plea negotiations renders defendant’s guilty plea invalid. Orders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement (see People v Nieves, 2 NY3d 310, 316 [2004]; see also People v Hull, 52 AD3d 962, 963 [2008]).

1 . In reviewing the constitutionality of other states’ similar civil confinement statutes, the United States Supreme Court has examined the legislative history, the stated purpose and intent of the legislation, as well as the statutory text itself, in deciding whether the legislation is civil or punitive in nature. In each case, that Court has found that the challenged statutes are civil and do not violate the Ex Post Facto or Double Jeopardy Clauses of the US Constitution (see e.g. Seling v Young, 531 US 250 [2001]; Kansas v Hendricks, 521 US 346 [1997]). Upon a review of those same factors with respect to the statute at issue here, we find no reason to conclude that it is anything other than civil in nature.

2 . While this appears to be a case of first impression in this state, persuasive authority for this conclusion exists elsewhere (see e.g. Steele v Murphy, 365 F3d 14 [1st Cir 2004]; George v Black, 732 F2d 108 [8th Cir 1984]; Cuthrell v Director, Patuxent Inst., 475 F2d 1364 [4th Cir 1973]; Klaus v Luebbers, 2009 WL 367697, 2009 US Dist LEXIS 10031 [ED Mo 2009, Fleissig, J.]; Page v State, 364 SC 632, 615 SE2d 740 [Sup Ct 2005]; State v Harris, 881 So 2d 1079 [Fla Sup Ct 2004], cert denied 543 US 1036 [2004]; Freeman v State, 2008 Minn App Unpub LEXIS 1316 [Ct App 2008]; In re Detention of Lindsay, 333 Ill App 3d 474, 776 NE2d 304 [5th Dist 2002]; Martin v Reinstein, 195 Ariz 293, 987 P2d 779 [Ct App 1999]; People v Moore, 69 Cal App 4th 626, 81 Cal Rptr 2d 658 [Ct App 1998]; Bussell v State, 25 Kan App 2d 424, 963 P2d 1250 [Ct App 1998]; see also State v Strenge, 752 NW2d 35 [2008] [table; text at 2008 WL 942284, 2008 Iowa App LEXIS 220 (Ct App 2008)]; Commonwealth v Cruz, 62 Mass App Ct 610, 818 NE2d 616 [2004]; but see State v Bellamy, 178 NJ 127, 138-139, 835 A2d 1231, 1237-1238 [Sup Ct 2003] [although a collateral consequence, the nature of potential civil commitment is so “severe” that “fundamental fairness” requires that defendants be informed of it before entering a guilty plea]).