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People v. Gravino

May 11, 2010

THE PEOPLE &C., RESPONDENT,
v.
TARA GRAVINO, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
ROBERT W. ELLSWORTH, APPELLANT.



The opinion of the court was delivered by: Read, J.

We hold that because they are collateral rather than direct consequences of a guilty plea, SORA registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing. Put another way, a trial court's neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant's guilty plea.

I. Gravino

By indictment filed on February 6, 2007, defendant Tara Gravino was charged with rape in the second degree (Penal Law § 130.30 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]), and unlawfully dealing with a child in the first degree (two counts) (Penal Law § 260.20 [2]) for providing alcohol to underage children and having sex with a 14-year-old boy. Gravino was a 34-year-old mother of six in September 2006, when the events underlying the indictment took place.

After unsuccessfully moving to suppress a statement in which she made an admission, Gravino pleaded guilty on August 16, 2007 to one count of third-degree rape (Penal Law § 130.25 [2]) in exchange for a sentence of 11/2 to 3 years in prison. During the plea colloquy, Gravino told County Court that she was satisfied with her attorney.*fn1 The judge did not inform Gravino that she would have to register as a sex offender under the Sex Offender Registration Act (SORA) (Correction Law art 6-C) as a consequence of her conviction.

When Gravino appeared for sentencing on September 14, 2007, she asked to "pull [her] plea back on the grounds of a conflict of interest with" her assigned counsel. She told the judge that she had experienced "nothing but misrepresentation," and complained that the attorney -- who, she stated, had previously represented an ex-husband in "a custody battle against [her]" -- had not interviewed potential witnesses. The judge responded "We went over that before, didn't we?" Gravino did not answer directly. Instead, she repeated that she felt as if she had been "misrepresented," and not "treated fairly." The prosecutor, when asked by the judge if he wished to comment on Gravino's application to withdraw her guilty plea, replied that the judge was "correct" and that the parties had "previously addressed this issue and covered it completely";*fn2 further, there were no "new grounds or new evidence" to "justify the withdrawal of the plea."

County Court denied Gravino's application. He advised her, however, that she could later move for post-conviction relief, for which he would assign her new counsel. Next, the judge sentenced Gravino as promised. The clerk then brought up the sex offender registration fee of $50 and the supplemental sex offender fee of $1,000, which the judge imposed; and the prosecutor asked the judge to certify Gravino as a sex offender, which he did.

On appeal to the Appellate Division, Gravino argued that County Court should have conducted an inquiry after she moved to withdraw her guilty plea on conflict-of-interest grounds; and that her guilty plea was involuntary because the judge did not tell her that she would have to register as a sex offender. The court disagreed with Gravino. First, the Appellate Division held that County Court did not abuse its discretion because Gravino's "specifications of ineffective assistance concern[ed] matters outside the record [which] thus must be raised by way of a CPLR article 440 motion" (62 AD3d 1259 [4th Dept 2009] [internal quotation marks omitted]). Further, the court concluded that Gravino's "lack of awareness prior to sentencing" of the SORA registration requirement did not detract from her guilty plea's voluntariness (id.). A Judge of our Court granted Gravino leave to appeal, and we now affirm.

Ellsworth

By indictment filed on October 5, 2006, defendant Robert W. Ellsworth, Sr., who was then 39 years old, was charged with one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75-1a) and one count of first-degree rape (Penal Law § 130.35-3), based on allegations that he sexually abused a young girl from the age of seven until she reported the abuse at the age of 10. On April 10, 2007, Ellsworth pleaded guilty to one count of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [a]) in exchange for a split sentence of six months in jail and 10 years of probation. At the time, Ellsworth resided with his girlfriend and several children (although not the alleged victim) younger than 18 years old. The judge did not mention any particular potential conditions of probation during the plea colloquy.

After his guilty plea and before sentencing, Ellsworth was interviewed by a probation officer for purposes of a presentence report, completed on June 1, 2007. During this interview, Ellsworth "asked about the ramifications of being classified as a sex offender and being around children under the age of [18], specifically, his own children [who] reside[d] with him." The probation officer told Ellsworth that he would be forbidden from associating with any child under the age of 18, even his own children, as a condition of probation. According to the probation officer, Ellsworth "questioned this," and so he advised him "to consult with his attorney so that a motion could be made before the court for consideration."

When Ellsworth appeared for sentencing on June 18, 2007, his attorney moved to withdraw the guilty plea and proceed to trial. Ellsworth's attorney also mentioned that the judge, with the prosecutor's consent, had offered Ellsworth an alternative sentence -- two years in prison to be followed by two years of postrelease supervision -- on June 11th, his originally scheduled sentencing date, and that Ellsworth had been given one week to consider this option.

Because the prosecutor who had handled the case was not present, County Court adjourned the sentencing hearing until June 25, 2007, and reserved on the motion. When Ellsworth appeared on that date, though, his attorney withdrew the motion, and indicated that the "6/10" split sentence originally promised Ellsworth was "what he want[ed] to do." When County Court asked Ellsworth if there was "anything [he] wanted to say on [his] own behalf," he only inquired as to whether he could serve his time in jail on weekends. He did not inquire about access to his minor children, or, for example, ask the judge for permission for supervised visits with them.

The judge then sentenced Ellsworth as promised, and handed him a written copy of the terms and conditions of his probation. This document, entitled "Order and Conditions of Adult Probation," ordered Ellsworth to comply with three general and 18 special conditions as well as "any others which the Court may impose at a later date" (emphasis added). Special Condition number eight states as follows: "Do not initiate, maintain or establish contact with any child under the age of 18, nor attempt to do so, nor reside in the same residence with minor children, without permission of the Court or your (probation officer)."

In November 2007, Ellsworth, represented by a new attorney, moved to vacate his judgment of conviction pursuant to Criminal Procedure Law ยง 440.10. In that motion, Ellsworth argued that his trial attorney had provided inadequate assistance by "fail[ing] to adequately investigate his case and defenses [and] coerc[ing] him into accepting a . . . plea deal" that was "unwanted," apparently because he was prohibited from being around his minor children. Ellsworth also claimed to be innocent of the charges. The People argued that ...


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