David R. Juergens, for appellant.
Kelly Wolford, for respondent.
Penal Law § 70.25 (2-a) requires that a prison term imposed upon a second felony offender run consecutively to a previously imposed undischarged sentence. We hold that the consecutive nature of the new sentence is a collateral rather than direct consequence of a conviction in determining the adequacy of a plea allocution.
Following a buy and bust operation in 2006, defendant Rafael Belliard was arrested for possessing cocaine and a loaded firearm. He was subsequently charged with criminal possession of a controlled substance in the first and third degrees and criminal possession of a weapon in the second degree. In July 2007, defendant pleaded guilty to all three counts of the indictment. At the time of his guilty plea, defendant had a prior undischarged state sentence stemming from an earlier state felony drug conviction. And in committing the 2006 crimes, defendant was also facing a federal violation of supervised release in connection with two prior federal felonies.
During the July 2007 plea colloquy, the trial court explained that, as a second felony drug offender, defendant would receive a prison sentence of 12 years, followed by five years of postrelease supervision (PRS). Defense counsel asked the court to delay sentencing until the federal court had resolved defendant's violations of his supervised release, thereby permitting the new state sentence to be served concurrently with the federal sentence. The court agreed. No mention was made by defense counsel or the court as to whether the negotiated 12-year prison term would run concurrently or consecutively with the prior undischarged state sentence arising from his previous state drug conviction. Defendant allocuted to the charges and the court accepted his plea and adjourned his sentencing.
About two months later, defendant was sentenced to a determinate prison term of 12 years plus five years of PRS on the first-degree drug possession conviction, to be served concurrently with determinate terms of five years and five years of PRS on the third-degree drug possession and second-degree weapon possession convictions. The sentencing court further stated that the 12-year sentence would be concurrent to the federal sentence, as permitted by Penal Law § 70.25 (4) . As a second felony drug offender, Penal Law § 70.25 (2-a) required that defendant's 12-year prison term run consecutively to his prior undischarged state sentence . The court, however, was silent on this subject.
Defendant appealed from the judgment of conviction, asserting that his guilty plea was involuntary and should be vacated because the trial court did not advise him of a consequence of his plea, namely, that the 12-year term of imprisonment would run consecutively to his prior undischarged state sentence. The Appellate Division rejected this contention and affirmed (89 A.D.3d 1443 [4th Dept 2011]). A Judge of this Court granted defendant leave to appeal (18 N.Y.3d 955 ), and we now affirm.
Defendant maintains — and the dissent agrees — that his plea must be vacated because the trial court neglected to inform him that the determinate term of 12 years imposed as a result of his plea bargain was to run consecutively to the undischarged portion of the sentence relating to the earlier state drug conviction. He seeks to analogize his situation to that in People v Catu (4 N.Y.3d 242 ), where we held that a mandatory PRS term is a direct consequence of a conviction and must be addressed by the court during a plea allocution. The People counter that the consecutive nature of defendant's sentence is a collateral consequence and the trial judge's failure to raise it does not undermine the validity of the plea.
A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences. The court is not obligated to engage in any particular litany during the plea colloquy, "but due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (People v Ford, 86 N.Y.2d 397, 403  [internal quotation marks and citations omitted]). Nevertheless, because it would be unfeasible for a court to advise a defendant of all the possible ramifications of a guilty plea, our cases have drawn a distinction between the direct and collateral consequences of a plea.
The significance of this distinction is that a trial court has a duty to advise a defendant about direct consequences, which are defined as having "a definite, immediate and largely automatic effect on defendant's punishment" (id.). A court's failure to comply with this mandate is not subject to harmless error review and requires reversal (see People v Harnett, 16 N.Y.3d 200, 205 ). In contrast, a court may, but need not, refer to collateral consequences during a plea allocution. A court's silence regarding collateral consequences "will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control" (Ford, 86 N.Y.2d at 403).
In Catu, defendant pleaded guilty to various crimes and his sentence, by virtue of his status as a second felony offender, was required by statute to include a five-year period of PRS (see Penal Law § 70.45). The trial court, however, did not inform defendant of the period of supervision during the plea colloquy. We held that PRS is a direct consequence of a conviction as it constitutes a "component of [a] sentence" (Catu, 4 N.Y.3d at 245) and, consequently, a defendant must be advised of the PRS term associated with the subject crimes. We further noted that, "[w]hereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record, imposition of supervision is mandatory and thus has a definite, immediate and largely automatic effect on defendant's punishment" (id. at 244 [internal quotation marks and citation omitted]). As a result, we concluded that defendant was entitled to have his plea vacated.
Next, in People v Gravino (14 N.Y.3d 546 ) and its companion case, People v Ellsworth, we addressed whether mandatory registration under the Sex Offender Registration Act (SORA) and terms of probation are direct or collateral consequences of a plea. In Gravino, the trial judge did not notify defendant that she would have to register as a sex offender under SORA because of her rape conviction. And in Ellsworth, defendant was not told about the conditions of probation, including non contact with his own children, before entering a guilty plea to a sex crime. On appeal, both defendants relied on Catu, asserting that SORA registration and probation conditions, like PRS, were direct consequences requiring that their pleas be set aside.
We rejected the proposed analogy between SORA and PRS in Gravino, stressing that PRS "is, by statute, a component element of a sentence, which is why a judge must pronounce the period of postrelease supervision at sentencing; it is thus an integral part of the punishment meted out upon a defendant's conviction of a crime" (id. at 556 [citation omitted]). In contrast, we noted that SORA is not a penal statute nor is the registration requirement a part of the sentence; rather, SORA is a remedial statute designed to prevent future criminal behavior. Although SORA unquestionably imposes significant burdens on a registrant, we determined that it is not a "'direct consequence' of a conviction within the meaning of Ford as interpreted in Catu " (id. at 557). Similarly, in Ellsworth, we held that the conditions of probation are collateral consequences, reasoning that "courts taking guilty pleas cannot be expected to predict any and every potential condition of probation ...