The People, Respondent,v.Terrance Monk, Appellant.BriefN.Y.March 21, 2013To be argued by LAURIE SAPAKOFF 10 MINuTEs REQUESTED COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against TERRANCE MONK, Defendant-Appellant. RESPONDENT’S BRIEF JANET DIFIORE DISTRICT ATTORNEY OF WESTCHESTER COUNTY Attorneyfor Respondent 111 Dr. Martin Luther King, Jr. Blvd. White Plains, New York 10601 Telephone: (914) 995-3497 Facsimile: (914) 995-4672 LAURIE SAPAKOFF STEVEN BENDER RICHARD LONGWORTH HECHT A £SJSTA NT DISTRICT A TTORN[IYS 0/Counsel Brief Completed: May 2,2012 TABLE OF CONTENTS TABLE OF AUTHORITIES.i PRELIMINARY STATEMENT 1 INTRODUCTION 2 FACTS 4 POINT I 22 DEFENDANT’S NEGOTIATED GUILTY PLEA WAS NOT RENDERED INVOLUNTARY BECAUSE THE COURT FAILED TO ADVISE HIM OF THE COLLATERAL CONSEQUENCES THAT MIGHT RESULT FROM VIOLATING THE CONDITIONS OF POSTRELEASE SUPERVISION (Responding to Appellant’s Points I & II). CONCLUSION 45 TABLE OF AUTHORITIES Cases Apprendi v New Jersey, 530 US 466 [2000] 18 Boykin vAlabama, 395 US 338 [1969] 24 Padilia v Kentucky, 559 US —, 130 SCt 1473 [2010] 24 PaytonvNew York,445 US 573 [1980] 8, 18 People v Behlin, 33 AD3d 390 [2006] 26, 27 PeoplevBoyd, 12NY3d 390 [2009] 25 People v Catu, 4 NY3d 242 [2005] 3, 23, 24, 27, 33 People v Donovan, AD3d —, 2012 WL 1205739 [2012] 31 People v Ellsworth, 14 NY3d 546 [2010] 25, 32, 36, 37, 38, 44 People vFord, 86 NY2d 397 [1995] 24,27,31 People v Gravino, 14 NY3d 546 [2010] 3, 24, 25, 36, 38, 44 People v Harnett, 16 NY3d 200 [2011] 3, 24, 26, 38, 39, 40 People v Harris, 61 NY2d 9 [1983] 24 People v Hill, 9 NY3d 189 [2007] 42 People V Laster, 38 AD3d 242 [2007] 26,27 People v Louree, 8 NY3d 541 [2011 38 People v McAlpin, 17 NY3d 936 [2011] 35 People v Monk, 50 AD3d 925 [2008] 7, 13,21,34,43 People v Muriqi, 9 AD3d 743 [2004] 26, 27 People vNixon, 21 NY2d 338 [1967] .40 Peoplev Rarnos, 63 NY2d 640 [1984] 23 People v Stewart, 16 NY3 d 839 [201 1] 38 State vBellamy, 178 NJ 127 [2002] 40 United States vAndrades, 169 F3d 131 [2d Cir 1999] 42 Statutes Correction Law art 6-C 25 Correction Law § 803 32 CPL44O.10 38 Executive Law § 259-i 28, 29, 30, 33 Mental Hygiene Law § 10.01 etseq 26,39 Penal Law § 70.45 28 Rules Federal Rules of Criminal Procedure rule 11 41, 42 11 To be argued by LAURIE SAPAKOFF 10 MINuTEs REQuEsTED COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against TERRANCE MONK, Defendant-Appellant. x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT This is an appeal by defendant-appellant from an order of the Appellate Division, Second Department, dated March 15, 2011, which affirmed a judgment of conviction rendered on August 17, 2005 against him in County Court, Westchester County, (Bellantoni, J.) whereby he was convicted, upon his plea of guilty, of the reduced crime of attempted robbery in the first degree, in full satisfaction of Indictment 04-0590, and sentenced, as a second violent felony offender, to a 10-year determinate term of imprisonment, to be followed by 5 years postrelease supervision (Bellantoni, Jj. 1 INTRODUCTION The possibility of further incarceration as a result of violating a condition of postrelease supervision is a collateral consequence of a defendant’s plea such that a court’s failure to advise a pleading defendant of this inchoate possibility does not vitiate the voluntary and intelligent nature of the plea. This nascent possibility, unlike postrelease supervision itself, is peculiar to the individual, is within the sole discretion of the Board of Parole, and is anything but definite, immediate or automatic. Nor can it be said that this collateral consequence is of such significance that a court’s failure to advise a pleading defendant that it is in the realm of possibility will automatically vitiate an otherwise voluntary and intelligent plea as a matter of Due Process. In addition, while this Court has recognized that certain consequences of sentence may be of such importance that a defendant should be afforded, as a matter of fundamental fairness, the opportunity to demonstrate that he would not have plead guilty had he been advised of that particular collateral consequence, this is not one of them, Never having claimed he would have rejected the plea offer in this case had he known the possible consequences of violating the conditions of postrelease supervision (and, indeed, never actually having claimed ignorance of this possibility in the first place and not having claimed ineffective assistance of counsel for not having advised him of this 2 possibility), defendant has not made the factual showing that would justify withdrawal of his plea under this second rationale. Neither of defendant’s arguments justifies the result of rendering infirm almost every guilty plea that has included postrelease supervision since its establishment in 1996. The avalanche of guilty pleas that would come crashing down upon trial courts, despite having been entered in reliance upon this Court’s precedents, is a repercussion of no small moment. It is a repercussion easily avoided by following the road map left by this Court in People v Catu (4 NY3d 242 [2005]), People v Gravino (14 NY3d 546 [2010]) and People v Harnett (16 NY3d 200 [2011]). 3 STATEMENT OF FACTS The Crime On the evening of March 21, 2004, Margaret San Marco was driving through White Plains, on her way home in the Silver Lake area of Harrison. When she was nearly at the quarry on Lake Street, she realized that she was being followed: defendant and another man were in a car tailing closely behind her (A: 149; RA: 1, 9).’ Defendant’s car began to pass San Marco on the left side, crossing the double yellow line as it did so. Oddly, defendant’s car slowed down when it was next to San Marco’s car (and thus in a position for its occupants to size up San Marco), and then sped up and pulled ahead. The car turned left and pulled into a driveway just before the Park Lane Community House. As San Marco passed them, her pursuers backed out of the driveway and began to chase her up Lake Street. She accelerated and made a right turn into her driveway, parking next to her garage. It was about 11:00 P.M. (A: 149; RA: 9). Having followed San Marco to her home, defendant and his cohort stopped their car there. Both men jumped out and, just as San Marco was about to get out, immediately surrounded her car. Defendant went straight to the front passenger ‘Parenthetical notations preceded by “A” refer to the appellant’s appendix. Notations preceded by “RA” refer to the respondent’s supplementary appendix, the latter containing the Bill of Particulars served and filed as part of consent discovery on October 1, 2004; the December 9, 2004 Affirmation of Assistant District Attorney Jean L. Lizzul, in opposition to defendant’s motion for omnibus reliefi pages 1 through 3 of the presentence report prepared by the Department of Probation, and excerpted pages of the pretrial hearing transcript. 4 side door, and his accomplice positioned himselfat the driver’s door, banging on her window, pounding and kicking the doors, and yelling at her to open the door; San Marco refused (RA: 1,3,9,14). As she turned toward defendant’s cohort, San Marco felt something hit her in the ribs; defendant had smashed the passenger window with a brick and was screaming at her. Her attention now focused on defendant San Marco saw that he was wielding a silver knife. Armed with this deadly weapon, defendant demanded San Marco’s wallet; she told him that it was inside her purse. Defendant reached through the now broken window, punched San Marco in the badç and threatened to kill her if she did not get out ofthe car. He also threatened to cut offthe victim’s finger if she did not give him her ring. Defendant stole her purse, cellular telephone, vehicle keys, and her ring (A: 149; RA: 1,3,9-10). Defendant’s accomplice told San Marco to get out of the car and go upstairs. She was screaming at them, telling them she had cancer and to go away. Defendant took the valuables; then he and his accomplice fled toward the rear of the victim’s vehicle and jumped a fence. The victim saw the car in which defendant and his cohort had arrived being driven out ofa neighboring driveway; sheranupstairstoherapartmentandcalled9ll (RA: 3,10). As a result ofdefendant’s hurling the brick through the window, San Marco suffered a fractured rib and other injuries to her right arm(A: 149; RA: 1,3, 10). 5 On March 25, 2004, San Marco viewed a photographic array with six photographs for identification purposes. Defendant’s photograph was not in the array and she did not identify any person therefrom as the individual who robbed her (RA: 16-25). On March 27, 2004, the victim viewed a photographic array of six similar looking men and positively identified defendant from his photograph as the man who was at the passenger window of her car holding the knife during the robbery (RA: 3-4, 26-3 7). The hearing court subsequently found this array not to be unduly suggestive (RA: 69-72). On April 15, 2004, at approximately 8:00 A.M., the defendant was arrested in the threshold of his dormitory room at Buffalo State College. The arrest was effectuated by Harrison Police Department detectives and Ramapo Police Department detectives, who were investigating defendant for other crimes (RA: 4, 38-41). Two university police officers were also present during the arrest. Defendant was read his Miranda rights and waived those rights by signing the Waiver of Rights card. Upon leaving the university, defendant was again read his Miranda warnings (RA: 4, 42-48). Thereafter, defendant made several statements to the police officers, including a statement that the cell phone present at the scene 6 of several crimes was his and that he was “the ringleader” (RA: 4)•2 Subsequent to his arrival at the Harrison Police Department and at one point during questioning, defendant put his head down and said “I’m done” and “[y]ou guys got me” (RA: 50). The prosecution By Westchester County Indictment Number 04-0590-01, defendant was charged with robbery in the first degree, robbery in the second degree (two counts), assault in the second degree, and assault in the third degree. During this same time period, defendant was indicted in Rockland County; he was ultimately convicted of robbery in the first degree, burglary in the first degree, and robbery in the second degree afler a jury trial and was sentenced in that case on November 15, 2005, to an aggregate determinate term of 17 years imprisonment and 5 years postrelease supervision (People v Monk, 50 AD3d 925 [2008], lv denied 11 NY3d 791 [2008]). Regarding the instant case, defendant was represented by the Legal Aid Society of Westchester County from April 26, 2004, until they requested to be relieved on October 14, 2004. Subsequently, Judith E. Permutt, Esq., was assigned to represent him from October 14, 2004 until May 10, 2005. On May 10, 2005, Ms. Permutt was relieved due to “irreconcilable differences” between attorney and 2Defendant’s phone was actually tracked through the use of cell towers; this information was subsequently used by police during this investigation to link defendant to crimes in Rockland County and Montvale, New Jersey (RA: 51-55, 73). 7 client. Andrew Rubin, Esq., was then assigned as defendant’s counsel (A: 113- 123). With respect to this case, defendant failed to appear for a scheduled court date on three occasions, resulting in bail bond forfeiture. Defendant was ultimately apprehended in North Carolina by United States Marshalls (RA: 5). The court held pretrial hearings for four days during April 4 through April 12, 2005, pursuant to defendant’s motions to suppress his statements to police and identification testimony on grounds which included his argument that his arrest had been effectuated in violation of Payton v New York (445 US 573 [1980]). At the conclusion of the hearings, the court found no undue suggestiveness in the victim’s identification of defendant from the photographic array; and found that defendant’s statements were made after he was advised of, and duly waived his Miranda rights and was voluntary in all respects. Thus, the court denied defendant’s motions (RA: 57-72). Plea discussions On April 4, 2005, just prior to the pretrial hearings, the court addressed defendant, confirming that it was his decision to proceed with those hearings and that he had rejected the most recent sentence offer of 15 years, proffered by the Trial Assignment Part (TAP) court, in exchange for defendant pleading guilty to the top count of robbery in the first degree. The prosecutor stated her 8 understanding that the sentence would be concurrent with whatever sentence was imposed in Rockland County (RA: 10-13). On April 12, 2005, on the heels of the completed hearings, the parties appeared in court for defendant to consider a new plea offer. Though most of the discussions were off the record, it was put on the record that defendant was being offered the opportunity to plead guilty to attempted robbery in the first degree, and that if he fulfilled certain conditions, that plea would be vacated and replaced with a plea to attempted robbery in the second degree. The possible sentence range was between five and seven years. The case was adjourned to the following day for defendant to consider the offer. In addition, and apparently at defendant’s request, the case was being adjourned for the People to ascertain the position of the Rockland County District Attorney’s Office with respect to a possible plea bargain in that case (A: 51-58). On April 13, 2005, the parties again convened in Westchester County Court. The court informed defendant that although the Rockland County District Attorney was not willing to offer less than a 10-year determinate prison sentence on defendant’s case in that jurisdiction, the People (in the instant matter) were willing to offer a plea to attempted first degree robbery with a recommendation of a seven year determinate prison sentence. Unlike the offer discussed the previous day, this 9 offer had “no strings attached,” meaning that defendant did not have to “implicate anybody” and did not have to talk with the prosecutor (A: 59-61). Defendant declined the offer, but also stated that he needed more time because he had to “talk to people in the street about that” (A: 62-63). When the court pointed out how the offer had actually improved since the day before, since defendant was “not required to say anything” and he was being guaranteed a promise of a seven-year prison term. Defendant responded by complaining that he would still be getting “ten in Rockland or fifteen, whatever else they decide,” and that he would rather go to trial and lose (A 64-65). Despite that he had just been actively engaging in plea discussions, and had complained about the Rockland County District Attorney’s unwillingness to offer less than a 10-year sentence, defendant now said that he “didn’t do it,” and that he was “not going to say and cop out to anything that [he] didn’t do” (A: 65). With that, the parties went on to discuss scheduling of the trial (A: 65-66). Following a brief recess, the parties went on to discuss pretrial matters, including motions in lirnine. The court noted that it expected to start selecting a jury on Friday, April 15th (A: 86-87). Later that same day (April 13, 2005), a Sandoval hearing was held. Pursuant to the court’s Sandoval ruling, in the event that defendant testified at trial, the People would be allowed to cross-examine him concerning his conviction for a 10 home invasion burglary that he committed on August 15, 1996, as well as the underlying facts surrounding that conviction. Further the People were also permitted to inquire into four other burglaries and theft underlying facts as well as the facts ofthe arrest These four burglaries were covered by defendant’s guilty plea in connection with the August 15, 1996 home invasion burglary (RA: 74-81). On the morning ofApril 14, 2005, the parties continued with pretrial matters. That afternoon, defense counsel made a record ofthe history ofplea bargain offers that had been held out to defendant including the last offer ofa 10- year determinate sentence to run concurrently with whatever sentence was imposed on the Rockland case. Counsel related that she had had numerous conversations with defendant about this offer, that he had rejected the offer against her advice, but that she continued discussing it with him (A: 89-90). When the court addressed him directly, defendant confirmed that he had discussed the offer “to exhaustion” with counsel and was rejecting it (A: 90). Counsel added that she had advised defendant that ifhe went to trial, he faced a minimum sentence of 10 years and a maximum of25 years, and that he was facing 25 years on the Rockland case. Defendant confirmed that he understood this and that his attorney had explained it to him (A: 90-91). The parties went on to discuss in earnest a number of in limine motions, in anticipation ofbeginning the trial (A: 91). Toward the end ofthe day, as the court 11 was about to discuss the proposed jury voir dire procedures with the parties, defendant indicated that he “might want to accept a plea,” and the court gave counsel 20 minutes to discuss it with defendant (A: 92). At about 4:30 P.M., the court addressed defendant, explaining that, as it had done “time and time again,” it was holding off on proceeding toward jury selection as an accommodation to defendant and his attorney so that they could again consider the latest plea offer. The court advised defendant that he had until the next day to make a final decision, reminding defendant that the court had no authority over the Rockland County case. The prosecutor made it clear that once jury selection began, the current offer would be withdrawn. The court explained that the following day, Friday April 15, 2011, it would be going through its preliminary instructions with the parties and that on Monday, they would begin selecting a jury. With that, defense counsel continued privately discussing the matter with defendant, and noted that she intended to call the Rockland County District Attorney’s Office to clarify their position (A: 92-97). The plea proceeding The next day, Friday April 15, 2005, defendant accepted the People’s final offer. He appeared with counsel, in Westchester County Court (Bellantoni, J.) and 12 expressed his desire to enter a guilty plea to amended count one of Indictment 04- 0590 (A: 99-l00). At the outset of the plea proceeding, the court made a record of the plea agreement: defendant agreed to plead guilty to amended count one, attempted robbery in the first degree, with the understanding that the court would sentence him to a determinate sentence of 10 years imprisonment to run concurrently with the sentence that would be imposed in Rockland County (A: 100). Defendant understood that before the plea could be accepted, the court needed to make sure that he was knowingly, intelligently, and voluntarily entering the plea. Defendant then acknowledged that if he needed time to consult with his lawyer during the allocution or if he was not comfortable with a particular answer or did not understand a question, he could consult with his attorney before he answered it and then the question could be clarified, or he could provide an answer after consulting with his attorney (A: 100-101). Defense counsel, with her client’s permission, withdrew defendant’s previously entered plea of not guilty and entered a plea of guilty to amended count While appearing in Rockland County Court. defendant refused to accept the 10-year offer that was made available to him as a result of the Westchester County District Attorneys Office’s outreach to the Rockland County District Attorney’s Office (A: 99. 145-146). Defendant was subsequently convicted of robbery in the first degree, burglary in the first degree, and robbery in the second degree after a jury trial in Rockland County Court (that trial having commenced after defendant was sentenced in this case). On November 15. 2005. defendant was sentenced to an aggregate determine prison term of 17 years and 5 years postrelcase supervision in the Rockland case the conviction was affirmed on appeal (People v Uonk. 50 At)3d 925), and this Court denied leave (11 NY3d 791 [2008)). 13 one ofthe indictment attempted robbery in the first degree, a class C violent felony. The People then moved to amend count one ofthe indictment to attempted robbery in the first degree, a class C violent felony (A: 101-102). Defendant was sworn and a full voir dire was conducted (A: 103-111). The defendant stated that he was 26-years-old and had no problems understanding English. Defendant indicated that he had not consumed any alcoholic beverages, medication, or other drugs that could impair his understanding ofthe proceedings. Defendant acknowledged the panoply of constitutional rights he was waiving by virtue ofhis guilty plea (A: 103-105). Defendant was aware that his guilty plea was a conviction, just as ifhe had gone to trial and been found guilty ofattempted robbery in the first degree. He also informed the court that nobody threatened, coerced, or forced him to plead guilty (A: 105). Defendant acknowledged that he was entering his guilty plea freely and voluntarily. He stated that he was pleading guilty because he was in fact guilty. He understood that he was pleading guilty to a Class C violent felony offense, for which the maximum sentence could be 15 years in State prison. Defendant was also aware that if he was again convicted of a felony, his instant conviction could subject him to a greater sentence than ifhe had not been convicted (A: 106). 14 The court then specified the sentence promise as a 10-year determinate sentence, concurrent with the sentence to be imposed in Rockland County, with a mandatory 5-year period of postrelease supervision (A: 106-1 10). Defendant understood that notwithstanding the fact that he may be receiving a concurrent sentence often years on the Rockland County case, this plea of guilty stands on its own, independent of any other conviction (A: 107). Defendant denied receiving any other promises or representations with respect to his guilty plea. He understood that if he was arrested for committing a new crime while incarcerated, before sentencing in the instant matter, that he could receive an enhanced sentence on this conviction (A: 107). Defendant stated he understood that as a condition of the plea, he was waiving his right to appeal his conviction and sentence to the Appellate Division, Second Department. Defendant acknowledged that he had discussed his waiver of the right to appeal with his attorney. In consideration of his negotiated plea, defendant stated that he voluntarily waived his right to appeal his conviction and sentence under this indictment. Defendant also withdrew all motions, pending or decided. Defendant understood that his statements may be used against him in other judicial proceedings, as they are admissions of guilt (A: 107-108). Defendant acknowledged that he was previously convicted on or about April 24, 1997, in the County Court of Rockland, of burglary in the second degree, a 15 violent felony, with a sentence of three to six years state prison. As such, he understood that he would be sentenced as a second violent felony offender and waived his rights contesting that adjudication. Defendant was also informed, and acknowledged, that if he is not a citizen of the United States, his guilty plea may result in deportation and exclusion from the United States (A: 108-109). Defendant then pled guilty to the crime of attempted robbery in the first degree. Defendant then acknowledged that on or about March 21, 2004, in the Town of Harrison, County of Westchester and State of New York, while being aided, abetted and acting in concert with other persons, he did attempt to forcibly steal property from another person, Margaret San Marco, and in the course of the commission of the crime and immediate flight therefrom, he used and threatened the immediate use of a dangerous instrument; to wit, a knife (A: 109-1 10). Defendant understood everything that was said during the allocution and did not have any questions (A: 110). In view of the plea allocution, which demonstrated the voluntariness of the guilty plea, the People recommended that the court accept defendant’s guilty plea. The court accepted defendant’s plea after finding that he knowingly, intelligently, and voluntarily entered such plea (A: 111). The motion to withdraw the guilty plea On May 10, 2005, defendant appeared, with counsel, in County Court, Westchester County (Bellantoni, Jj, so that defense counsel, defendant’s second 16 assigned attorney, Judith E. Permutt, Esq., could be relieved from representing defendant due to irreconcilable differences. Ms. Permutt contended that the defendant accused her of ineffective assistance of counsel and threatened to report her to various organizations. Defendant also refused to cooperate with the court in its effort to identif,i and resolve these problems between defendant and his counsel (A: 1 14-121). Additionally, defendant refused to communicate with Ms. Permutt at the proceeding. Defendant also wished to withdraw his plea (A: 118-119). Ms. Permutt was subsequently relieved as defense counsel, and in her stead, defendant’s third attorney Andrew Rubin, Esq., was appointed to represent the defendant (A: 120-122, 126). By motion dated June 24, 2005, defendant, through counsel, moved to withdraw his guilty plea, listing a multitude of grounds. First and foremost, the motion was based on defendant’s “firm assertion of innocence, as well as his contention that the guilty plea was induced by duress; and that the Court should have recused itself because of a conflict of interest, and that the sentence promised was illegal.” The “duress alleged” was based upon “ineffectiveness assistance of counsel both in failing to pursue certain areas of investigation which led to an unfavorable ruling on his suppression motion,” and in counsel’s pressuring defendant to enter a plea of guilty. The alleged duress was also based upon the “harassment of friends 17 and relatives ofdefendant by the Ramapo Police Department, members ofwhich defendant claimed were “essentially manufacturing the cases against him both in Westchester and in Rockland counties.” Defendant also claimed that the judge below “withheld” information concerning his past association with the Rockland County District Attorney’s Office. Defendant argued that prior counsel (Permutt) had been ineffective in her representation ofhim at the Wade hearing and in failing to follow through in contacting a witness who supposedly could have established that the police arrested him in violation ofPayton v New York (445 US 573 [1980]). Defendant disavowed the sworn answers he provided during the plea proceedin claiming they were the ‘product ofdesperation.” In a one-sentence paragraph, at the end ofhis six-page motion, defendant claimed that “the sentence promise in this case” violated the principles set forth in United States vAndrades (169 F3d 131 [2d Cir 1999]), in that the court did not explain to him at the time ofthe plea that a violation ofpostrelease supervision could result in up to 5 additional years of incarceration, beyond the 10 years promised. Finally, defendant argued that the sentence commitment was illegal and in violation ofApprendi v New Jersey (530 US 466 [2000]). In opposition, the People submitted an Affirmation and Memorandum of Law dated July 15, 2005. In a Decision and Order ofthe Westchester County 18 Court dated August 17, 2005 (Bellantoni, J.), defendant’s motion to withdraw his guilty plea was denied in its entirety. In its eight-page decision, the court set out the procedural history of the case, including the plea negotiations, pretrial hearing and eventual guilty plea. The court then explained why defendant’s list of claims lacked merit. It then concluded that “the consequences of a defendant’s violation of post release supervision are collateral to a defendant’s plea,” and that “[tjherefore, this Court was not required to advise Defendant of the effects of a violation of his post release supervision” (italics in original). The sentencing proceeding On August 17, 2005, defendant appeared, with counsel, in County Court, Westchester County (Bellantoni, J.), for sentencing. Defendant, who refused to answer the court’s inquiries regarding the second violent felony statement, was arraigned and adjudicated a second violent felony offender (A: 136-13 8). Defendant then claimed that he was innocent. The court addressed this claim, observing that throughout the proceedings leading up to the plea, defendant had not genuinely maintained his innocence and, in fact, “held out constantly for a better deal,” both here and in Rockland County’ (A: 153-156). While the court acknowledged that defendant, during the extensive plea bargaining process that took place, might have “professed” innocence, it had not been “genuine.” It had simply been a “profession of innocence in order to work 19 out a better deal because you would always come back after saying you didn’t do it, to say I’m willing to plead guilty, but with a deal better than the one that was originally given to you.” As an example of why defendant’s protestation of innocence rang hollow, the court reminded defendant that at one point he had disclosed to the court that he would inform on his cohort if he could get a better deal (A: 156-157). Adding that “you managed to do that,” the court recounted that defendant first procured an offer of 20 years, bargained that down to 15 years inthe Trial Assignment Part; and remarkably was able to wrangle an even more favorable offer of 7 years (A: 60, 143-144). The court noted as well that the victim’s identification of defendant as one of the two men who attacked her had been established after extensive hearings on the matter. It was after those hearings that defendant solicited the final offer of 10 years (A: 144-145). The court noted that beyond the victim’s solid identification of defendant, there was “much evidence” at the hearings linking defendant to this crime, refuting his protestations of innocence (A: 158). Making note of the laborious plea negotiations, the court commented that “this was not a case that came in and was disposed of in fifteen minutes” (A: 144). The promised sentence was then imposed. The court issued an order of protection in favor of the victim and explained its significance to defendant; 20 imposed the mandatory surcharge of $270; advised defendant of his right to appeal the court’s decision on his motion to vacate the plea and the right to appeal the sentence; and advised defendant of a possible $50 DNA fee (A: 159-164). On November 15, 2005, defendant received a favorable sentence in Rockland where that court ordered defendant’s sentence of 17 years imprisonment and 5 years postrelease supervision to run concurrently with the instant Westchester sentence (despite that it could have been imposed to run consecutively). The Rockland sentence was affirmed on appeal (People v Monk, 50 AD3d 925 [2008]) and this Court denied leave (11 NY3d 791 [2008]). 41t should also be noted that on December 15, 2008, the People received defendant’s pro se motion pursuant to CPL 440.10(h), seeking to vacate his judgment of conviction. Seizing the Appellate Division’s finding (in its decision affirming defendant’s Rockland County judgment of conviction) of a Payton violation (in his one arrest for both cases), defendant argued that the Westchester County Court’s rejection of his Payton claim was the only reason he plead guilty. That motion was denied in an April 22, 2009 decision and order of the County Court, Westchester County (Zambelli, J.), which pointed out, among other things, that despite the Appellate Division’s finding of a Payton violation, it went on to conclude that “there was sufficient attenuation between the unlawful arrest and the confession to remove the taint of illegality from the confession” (People v Monk, 50 AD3d 925 [internal citations omitted]). On July 30, 2010, the Appellate Division denied defendant’s application for leave to appeal from the denial of his CPL 440.10 motion. 21 POINT ONE DEFENDANT’S NEGOTIATED GUILTY PLEA WAS NOT RENDERED INVOLUNTARY BECAUSE THE COURT FAILED TO ADVISE HIM OF THE COLLATERAL CONSEQUENCES THAT MIGHT RESULT FROM VIOLATING THE CONDITIONS OF POSTRELEASE SUPERVISION (Responding to Appellant’s Points I & II). Having been advised that the court’s promised sentence would include a five-year period of postrelease supervision, and having maneuvered protracted plea negotiations to his best advantage, defendant (who nine years earlier pleaded guilty to one home invasion burglary in satisfaction of four other burglaries) nonetheless asks this Court to find the resulting guilty plea involuntary. He does so based solely upon the trial court’s failure to advise him that further incarceration might result from the inchoate possibility of his violating the conditions of postrelease supervision (PRS). Despite that this nascent possibility is just that — something that may never come to pass and thus defies description as “immediate, definite and largely automatic” — defendant argues that it is a direct consequence of a guilty plea about which a defendant must be advised before he or she can make a voluntary and informed decision to forego a trial. Defendant proffers this argument even though it is within the sole discretion of the Board of Parole, not the courts, to determine whether a violation has, in fact, occurred, and whether incarceration is the appropriate sanction. 22 As a fall-back position, defendant invokes Due Process “fundamental fairness” as requiring that a pleading defendant be informed by the court of this collateral consequence of possible, further incarceration; otherwise, he contends, the resulting plea will, or at least, may, be vitiated. This argument flies in the face of(or at least, pays no heed to) the principle that a court to whom a motion to withdraw a guilty plea is addressed should be entitled to rely on the record before the court to insure that guilty pleas are accorded finality whenever possible (People v Ramos, 63 NY2d 640, 642-643 [1984]). Where, as here, that record is devoid of a defendant’s representation of prejudice (i.e., that he would not have entered a guilty plea if he had known the collateral consequence at issue), a court should be hard-pressed to grant such a motion or even to conclude that a hearing is necessary. Otherwise, the principle favoring a court’s ability to exercise its discretion in reliance upon the record is sorely compromised, as is the general principle that guilty pleas be accorded finality. Putting aside that what defendant asks of this Court is to render infirm practically every guilty plea involving a violent felony offense since PRS was established in 1996, and ignoring the glaring lack of a factual assertion on defendant’s part in support of his legal argument (see infra at p. 41-42) and that his case thus appears ill-suited to make his point, his legal argument does not flow naturally from this Court’s decisions in People v cant (4 NY3d 242 [2005]), 23 People v Gravino (14 NY3d 546 [2010]) and People v Harnett (16 NY3d 200 [2011]). In claiming otherwise, defendant conveniently ignores certain salient differences and asks this Court to step outside the ambit ofjurisprudence that is the collective reasoning of these cases. 1. CATU AND ITS PROGENY Beginning with People v Ford (86 NY2d 397 [1995]), this Court has looked to the distinction between direct and collateral consequences of a guilty plea as a useful analytic criterion in determining whether a trial court has fulfilled its constitutional duty to ensure that a defendant “has a full understanding of what the plea connotes and its consequences” (id at 402, citing People v Harris, 61 NY2d 9, 19 [1983] and Boykin v Alabama, 395 US 338, 244 [1969]). A direct consequence was described as having a “definite, immediate and largely automatic effect on defendant’s punishment.” A collateral consequence was described as a result “peculiar to the individual’s personal circumstances and not within the control of the court system” (id at 403). In catu (4 NY3d 242), this Court held that the fact of PRS is a direct consequence of a defendant’s plea and as such, the failure of a court to advise a defendant that he will be subject to PRS as a mandatory and integral part of his As the majority recognized in Gravino (14 NY3d at 554, n 4), Ford’s direct/collateral consequence criterion remains valid after the Supreme Court’s decision in Fadilla v Kentucky (559 US , 130 SCt 1473 [2010]). 24 sentence means that the plea cannot stand as a voluntary and intelligent choice on a defendant’s part. In People v Boyd(12 NY3d 390 [2009], the Court held that the failure to advise a pleading defendant of the specific term of PRS constituted a Catu violation invalidating the plea. In Gravino (14 NY3d 546), this Court upheld a guilty plea despite that the trial court had not advised the pleading defendant that she would be required to register pursuant to the Sex Offender Registration Act (Correction Law art 6-C [SORA]). In concluding that it is a collateral consequence of a defendant’s plea, the Court found significant that SORA is not part of a defendant’s criminal sentence; it is a civil statute with the purpose of protecting the public rather than punishing a defendant. The Court found as well that since a defendant’s particular risk level under SORA is not known at the time a court accepts a guilty plea, it could not be said that SORA was a consequence with a “definite, immediate and largely automatic” effect on a defendant’s punishment (id at 556). In People v Ellsworth (14 NY3d 546), the companion case to Gravino, the Court upheld a guilty plea even though the trial court had not mentioned “any particular potential conditions of probation” during the plea colloquy. In particular, the court had not mentioned that the defendant might be prohibited from residing in the same residence with his own children (id at 552-553). Holding that 25 even “onerous” conditions of probation such as this were collateral consequences of a guilty plea, the Court concluded that Ellsworth’s argument — that his plea was not voluntary and intelligent because he had not been advised of potential conditions of probation — “would convert every plea colloquy where probation is part of the sentence into a conjectural and contingent exercise” (Id at 558). In People v Harnett (16 NY3d 200), the Court held that the failure of a trial court to advise a defendant the he “may” be subject to civil confinement pursuant to the Sex Offender Management and Treatment Act (Mental Hygiene Law § 10.01 et seq [SOMTA]) does not automatically invalidate a guilty plea. The Court concluded that the defendant’s argument that SOMTA was a direct consequence of a plea “plainly without merit.” As for the defendant’s second argument, the Court remarked that it “raises a serious question” but does not justify the result of automatic invalidation of the plea (id at 205). 2. THE POSSIBILITY OF FURTHER INCARCERATION AS A RESULT OF VIOLATING THE CONDITIONS OF POSTRELEASE SUPERVISION IS A “COLLATERAL” RATHER THAN A “DIRECT” CONSEQUENCE In affirming defendant’s judgment of conviction, the Second Department not only joined the First and Third Departments (see People v Laster, 38 AD3d 242 [2007], lv denied 9 NY3d 846 [2007]; People v Behlin, 33 AD3d 390 [2006], iv denied 8 NY3d 843 [2007]; People v Muriqi, 9 AD3d 743 [2004], lv denied 3 26 NY3d 679 [2004]),6 but remained faithful to the principles and precedent handed down by this Court. While the failure to inform a defendant, at the outset, that PRS is a mandatory part of his sentence will vitiate the voluntary, knowing and intelligent nature of that plea (People v Catu, 4 NY3d 242), the Second Department here found that the same could not be said for a failure to inform a defendant of the possible consequences of violating the conditions of PRS. First, in citing this Court’s characterization of a “direct consequence” as “one which has a definite, immediate and largely automatic effect on [a] defendant’s punishment” (id at 244, quoting People v Ford, 86 NY2d at 403), the Second Department recognized that, by comparison, the consequences of violating the conditions of PRS cannot be similarly characterized: they are uncertain and amorphous possibilities in an unknown future, dependent, in part, upon both the manner in which a defendant will act in the future and the particular rule he volitionally chooses to break. Since it is within a defendant’s power to avoid these consequences, and that the ability to do so may vary greatly from one individual to the next (for example, a defendant with a drug problem might be more likely to violate a condition of PRS to abstain from drugs), this is a consequence aptly characterized as being “peculiar” to the individual. 6The issue at hand was not preserved in Laster, Behlin or Muriqi. 27 Second, the question ofwhether there will be any consequences and, if so, what those consequences will be, remain solely within the discretion ofthe Board ofParole, rather than with the courts. Pursuant to the Penal Law and Executive Law, the Board ofParole, not the court, has plenary authority over a person subject to postrelease supervision (Penal Law § 70.45[3]; see also Executive Law § 259-i [3]-[4]). For example, the Board ofParole may or may not order, as a condition of postrelease supervision, that the person participate in the programs of a residential treatment facility for up to six months immediately following incarceration (Penal Law § 70.45 [3]). The Board has the exclusive discretion in this regard and a court presiding over a plea cannot anticipate how the Board will exercise its discretion. Moreover, the Executive Law provides detailed requirements as to how the• Board must manage those subject to postrelease supervision, while at the same time leaving broad discretion and fact-finding responsibility to the Board in its administration of such supervision. As the Executive Law binds the Board of Parole, only the Board, or an officer appointed thereby, is empowered to issue a warrant to temporarily detain a person upon reasonable cause to believe that they have violated a condition oftheir postrelease supervision (Id; Executive Law § 259-i [3][a][i]) “in an important respect” (Executive Law § 259-i [3][c][iv]). Should an alleged violator ofpostrelease supervision be so detained, it is the Board 28 that must provide him with a preliminary revocation hearing in front of a hearing officer designated by the Board (Executive Law § 259-i [3j[c][ij). After such a preliminary hearing, it is the Board-appointed hearing officer that decides whether there was probable cause to believe that the accused violated one or more conditions of her postrelease supervision “in an important respect” (Executive Law § 259-i [3][c][vi]). If there is a finding of probable cause, the Board’s rules, not the court’s, must provide the methods for a final determination declaring a person delinquent, restoring them to postrelease supervision, or revoking their release if they are convicted and sentenced on a new felony while under such supervision (Executive Law § 259-i [3j[d]). In the event that the alleged violator requests a revocation hearing, a Board member or a hearing officer appointed by the Board presides over the proceeding (Executive Law § 259-i [3][fj[ii]).7 At the end of the hearing, it is the Board, or the hearing officer appointed by the Board, that decides the issues of fact and determines whether the alleged violator’s postrelease supervision should be revoked (Executive Law § 259-i [3][fj[x]). 7The only interaction the courts may have with the proceeding is in the event that the accused is financially unable to retain counsel: the appropriate court will appoint counsel in such a situation (Executive Law çS 259—i [1[fI[]) 29 Furthermore, ifthe Board member or Board-appointed officer is satisfied by a preponderance ofthe evidence that the alleged violator has violated a condition or conditions ofrelease, many divergent consequences may follow at the sole discretion ofthe Board. It may direct the violator to be restored to supervision; orderthepersontobeplacedinaparoletransitionfaciityforupto l8Odaysand subsequent restoration to supervision; or order the violator to be reincarcerated for at least six months and up to the balance ofthe remaining period ofpostrelease supervision, not to exceed five years (Id). If the violator is restored to postrelease supervision or placed in a parole transition facility, the Board-appointed officer may impose any other conditions on postrelease supervision she deems necessary, as long as they are in compliance with Board rules (Id). Finally, the Executive Law provides that an appeal may be taken from a decision ofthe Board, and a violator is entitled to counsel on this appeal (Executive Law § 259-i [4]). Thus, the Board exercises boundless discretion over people subject to postrelease supervision. It is left to the Board ofParole’s discretion to decide whether a person has violated postrelease supervision or not, and if so, whether they should be restored to postrelease supervision, or ordered to prison time, transition, or any conditions it deems appropriate. Even the process ofappealing must be made in accordance with the Board’s rules (Executive Law § 259-i [4]). 30 Further, it would be impossible for a court to predict, let alone advise a defendant of the infinite future issues of fact and law surrounding postrelease supervision that may arise after a determinate sentence has been served. Therefore, the Legislature prudently left these decisions to the Board ofParole, an agency beyond the control ofthe allocuting court, as it is the Board’s mandate to be vigilant with regards to the supervisee’s ever-changing circumstances after the court’s sentence is imposed (see also People v Donovan, _AD3d —, 2012 WL 1205739 [20l2][details ofdefendant’s treatment regimen not “immediate, definite or automatic result” ofher guilty plea, “but rather were fashioned by an agency outside Supreme Court’s control in response to defendant’s particular needs,” and as such, “were a collateral consequence that the court was under no obligation to explain”]). For these reasons, the intermediary appellate court’s decision and order was entirely consistent with this Court’s description ofcollateral consequences in People v Ford (86 NY2d at 403) as “peculiar to the individual” and which “generally result from the actions taken by agencies [that] the court does not control.” Just as the collateral consequences of SORA and SOMTA are neither known nor predictable at the time ofa plea, the collateral consequence ofpossible further incarceration as a result ofviolating the conditions ofPRS are neither known nor predictable at the time ofa plea. The decision and order below was 31 also consistent with this Court’s statement in People v Ellsworth (14 NY3d 546 [2010]) that a failure to inform a defendant of “onerous” terms of probation does not vitiate a guilty plea. Pivotally, a violation of the terms and conditions of probation, much like a violation of PRS, may result in incarceration. Given that the possibility of incarceration as a result of violating the terms of probation is a collateral consequence, even though it is within the court’s control, there is even more reason that the possibility of incarceration, outside the court’s control, as a possible result of violating a condition of PRS should also be considered a “collateral” consequence. By the same token, a court need not advise a pleading defendant concerning “good time” or “merit time” calculations for good behavior that may be made by the Commissioner of Corrections, despite that such calculations may significantly alter how much time a defendant will spend in state prison upon pleading guilty (see Correction Law § 803). Yet, as among the many consequences flowing from a guilty plea, such a calculation, which is outside the control of the court, is patently collateral. In arguing that further incarceration as a possible consequence of violating PRS is a direct consequence, the defendant purposely conflates PRS, itself, with the consequences of violating PRS, positing that to give meaning to the catu 32 decision, an explanation ofthe consequences ofviolating PRS should be part and parcel ofthe necessaçy explanation ofPRS within the meaning of Catzç of course the Court said no such thing in Catu itself. But the mere possibili4y of further indarceration as a consequence ofviolating the terms ofPRS is the antithesis ofa “definite, immediate and largely automatic effect” on a defendant’s punishment In claiming otherwise, defendant points out that the range ofthis additional incarceration (from six months to five years) — if it is in fact imposed, rather than restoration to supervised release or placement in a parole transition facility (see Executive Law § 259-i [3][e][x]) — is definite and is known at the time ofthe plea. But knowing the range ofa potential consequence does not make its actual occurrence any more definite or immediate. Of course, PRS is a direct consequence about which a defendant must be informed (People v Cciii,, 4 NY3d 242), and about which this defendant in particular was informed, prior toplguilty. To the extent that a violation of the conditions ofPRS might implicate defendant’s Due Process liberty interest (i.e., might result in further incarceration), defendant was duly informed ofPRS, and that foreknowledge was sufficient to put defendant on notice (thus satisfying the right to Due Process) ofwhatever collateral consequences might result from violation of the conditions ofPRS. 33 In pressing this argument, defendant seems to suggest that PRS is a concept so beyond the average person’s understanding that he could not possibly be expected to fathom the basic meaning of the phrase: that “postrelease supervision” (as stated at the plea) meant he would be supervised upon release from prison, that this would in some fashion require him to adhere to certain rules, and that his failure to do so would be met with consequences. Indeed, having been duly advised that he would be subject to PRS upon release from prison, defendant was provided with the basic information necessary to alert him to the nature of this collateral consequence such that he could ask additional questions of both his attorney and the court if it was actually something of sufficient importance to him.8 As part of his attempt to cast the consequences of violating PRS as “direct” and not “collateral,” defendant describes PRS as something which “creates” and “envisions” the possibility of further incarceration (see Defendant’s Brief, p. 25- 8 Defendant posits that although he is no stranger to the criminal justice system and served a state prison term for his prior conviction for burglary in the second degree, that conviction predated the legislative change instituting determinate sentences and PRS for violent felonies. Thus, he argues, his familiarity with the system did not translate into familiarity with PRS. But while his prior prison sentence did not include PRS, it did entail an indeterminate sentence, the amount of which he would serve subject to future determination by the Parole Board. Indeed, he was released to parole on January 7, 2000 and was subject to the conditions of his parole for three years, until December 27, 2002. In addition, defendant is a savvy and proactive litigant who filed apro se CPL 440.10 motion attempting to capitalize upon the Second Department’s decision in his Rockland County case by positing how and why that decision supported his claim of an involuntary plea. Notably as well, defendant filed apro se supplemental brief in the Second Department on his appeal from his Rockland County judgment of conviction (see 50 AD3d 925, 926). Consequently, defendant should not be mistaken for a “babe in the woods” who lacked an appreciation for his situation and his options at the time that he took advantage of a decidedly favorable plea offer, after having deftly orchestrated protracted plea discussions. 34 26). In this way, he seems to anthropomorphize the statute as the main culprit which alone (or principally) gives rise to the potential for further incarceration. It is, after all, a consequence completely in defendant’s control, one which will not come to pass if defendant abides by the rules, and one which might not come to pass even if defendant were to violate the conditions of PRS. Furthermore, and again, it is no different than the possibility of further incarceration as a consequence of violating the conditions of probation. Yet in Gravino, this Court has already concluded that a plea is not vitiated by a trial court’s failure to mention even “onerous” conditions of probation. Notably as well was this Court’s decision in People v McAlpin (17 NY3d 936 [2011]). There, the defendant plead guilty to robbery in the second degree with the understanding that he would be adjudicated a youthful offender and receive a term of probation. The trial court warned the defendant that if he violated the terms of the youthful offender agreement, he faced a maximum sentence of 15 years incarceration. This Court held that since the trial court had “elected to advise defendant of the consequences that might flow from the violation of the youthful offender agreement” (idat 938), the failure to explain that the 15-year prison term would be followed by postrelease supervision resulted in an inaccurate representation of the sentencing possibilities, a Catu-like problem. The salient point. with respect to that matter, is that the plea was invalidated because in “elect[ing]” to warn the defendant of the possible consequences of violating the agreement, the court’s explanation had been flawed. It was not held that the possible consequence of violating the agreement was a direct consequence of the defendant’s plea within the meaning of Catu and Ford; nor was it held that as a matter of Due Process, the voluntary and intelligent nature of the plea depended upon the defendant having been so advised. 3. FAILING TO EXPLAIN TO A PLEADING DEFENDANT THAT FURTHER INCARCERATION MAY RESULT FROM A VIOLATION OF POSTRELEASE SUPERVISION DOES NOT RENDER A PLEA INVOLUNTARY. Defendant’s alternate argument is that the possibility of further incarceration is of such significance that the failure to advise a pleading defendant of this possible ramification invalidates a plea even if labeled a “collateral” consequence. In Gravino, this Court alluded to the possibility of “cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed” (14 NY3d at 559). The Court observed that such cases would be “rare,” because “in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long” (id). In Harnett, the Court harkened back to these observations in addressing the issue of whether a court’s failure to advise a defendant of SOMTA invalidates a guilty plea. This Court’s observation that for the most part, the “overwhelming consideration” for a defendant “whether he will be incarcerated and for how long,” is quite right But it is perhaps more precise to emphasize the phrase “will be” as reflecting that a defendant is interested in whether he will be incarcerated, as a definite and immediate matter, pursuant to the sentence imposed by the court It does not follow that the merepossibility ofviolating the terms ofPRS and the possibility ofthat violation resulting in the imposition ofsome yet to be determined period ofreincarceration would be an “overwhelming consideration” for a pleading defendant in the same way that an immediate and definite prison term is an “overwhelming consideration.” To be sure, it is a consequence even further removed than the possibility of further incarceration due to violating “onerous” conditions ofprobation;9and yet the latter is considered a collateral consequence about which a pleading defendant need not be informed for his plea to be voluntary. Theoretically, a particular defendant’s decision topl guilty might be influenced by knowing that a future violation ofa PRS condition might result in further incarceration. This Court observed as much in Gravino, when it noted that 9Consider as well that for the defendant in People v Ellsworth (4 NY3d 242), the “overwhelming consideration” was not even the possibility of fhrther incarceration, but the condition of probation that he would be prohibited from residing with his own children. 37 “[t]here may be cases in which a defendant can show that he pleaded guilty in ignorance ofa consequence that, although collateral for purposes ofdue process, was of such great importance to him that he would have made a different decision had that consequence been disclosed” (14 NY3d at 559). Here, it bears remembering that CPL 440.lO[h] already provides a vehicle by which a defendant may argue that his plea was involuntary due to the absence ofhis having been privy to information uniquely significant to him’° — something defendant is hard- pressed to do. Nonetheless, defendant contends that for “virtually” all the reasons expressed in both the majority and dissenting opinions in People v Harnett (16 NY3d 200), the Appellate Division erred. But the majority in Harnett rejected both ofthe defendant’s arguments - that SOKifA was a direct consequence of a guilty plea and, alternately, that it was of such significance that its absence from the plea colloquy vitiated the plea. It was only in dicta that the Court acknowledged that in limited circumstances, the failure to inform a defendant of this collateral consequence of SOMTA might vitiate a plea “if a defendant can show that the prospect of SOMTA confinement was realistic enough that it ‘°Although a Cani claim generally cannot be raised in a CPL 440.10 motion (People v Siewarl, 16 NY3d 839 [2011]; People v Louree, 8 NY3d 541 [2011]), ostensibly a claim pursuant to CPL 440.l0[h], that the plea was involuntary due to a defendant not having been advised ofa collateral consequence that was nonetheless of significance to him, could not be addressed solely with reference to record facts. 38 reasonably could have caused him, and in fact, would have caused him, to reject an otherwise acceptable plea bargain” (id at 207). But a Due Process interest is more remote in the instant case than it was in Harnett. Here, defendant was advised of the term of PRS included in his sentence; in Harnett, the defendant had never been advised that SOMTA was even on the horizon. Furthermore, a violation of PRS would be the result of a defendant’s volitional conduct post-conviction and post-release to supervision, while civil confinement under SOMTA can be based upon, among other things, defendant’s pre-conviction conduct and mental health (see e.g. Mental Hygiene Law §S 10.03 & 10.07). Stated otherwise, a defendant has total control as to whether he will face reincarceration under PRS and a defendant subject to SOMTA has none. Here it bears noting that defendant cited the failure to advise him of the consequences of violating PRS as just one of the multitude of grounds asserted in his motion to withdraw his plea. To the extent that its significance to defendant is reflected by the manner in which it was first asserted, it is germane to consider that this issue took up one meager one-sentence paragraph in a six-page motion. Most prominent in that motion were defendant’s assertions of “innocence” and “duress.” He claimed (through counsel) that he had been induced to plead guilty by “duress”; that the court should have recused itself based upon a conflict of interest; police harassment; police manufacturing of the cases; and that the sentence was illegal. 39 What this reveals is that the record, as it stands, refutes that defendant would have rejected the plea offer had he been aware of the potential consequences of violating PRS. It also bears recalling that this Court’s acknowledgment, in Harnett, that “fundamental fairness” might require a pleading defendant be advised of even collateral consequences was an acknowledgment largely (if not solely) based upon one case, State vBel/amy (178 NJ 127 {2002j). The facts of Bellamy “did indeed raise serious fairness questions” (Harnett, 16 NY3d at 206). Bellamy pleaded guilty to a sex crime in exchange for promise of an 18-month jail sentence. At the time of his plea he had already served most of that sentence and was scheduled to be released in about two months. However, one week before his release date, the New Jersey Attorney General began a proceeding under the New Jersey Sexually Violent Predator Act that resulted in Bellamy’s civil commitment. The unfairness of Bellamy’s situation was palpable, and it was the specter of that type of unfairness that concerned the Court in Harnett. There was no such unfairness here. In support of his position, defendant cites to People v Nixon (21 NY2d 338 [1967]), where this Court rejected a ‘uniform mandatory catechism of pleading defendants” as a way of insuring voluntary, intelligent and knowing guilty pleas, in favor of “broad discretions controlled by flexible standards.” But the jurisprudential philosophy that trial courts should operate with “broad discretions 40 controlled by flexible standards” is fully compatible with the “direct/collateral” criterion of Ford. After all, “flexible” standards do not mean “no” standards or criteria, and the proven functionality of the “direct/collateral” criterion does not preclude a court from exercising “broad discretions.” As a tool that logically examines and organizes the elements of the multitude of consequences that follow a guilty plea, the “direct/collateral” criterion sharpens the focus of the inquiry, and thereby aids a court in exercising its discretion. Paradoxically, in asking this Court to abandon the “direct/collateral” criterion, and instead hold, as a matter of Due Process, that a guilty plea is automatically shattered by a court’s failure to advise a defendant of the collateral consequence of violating conditions of PRS, defendant urges a “uniform mandatory catechism” of his own making. That he does so in the name of Due Process makes it no less constricting. Defendant also posits that the “history and development” of Rule 11 of the Federal Rules of Criminal Procedure “provides persuasive authority” for his argument (Defendant’s Brief p. 26, n.3). In the first place, this reference is at odds with defendant’s exhortation of Nixon’s rejection of a “uniform mandatory catechism of pleading defendants.” If ever there was a “uniform mandatory catechism” of pleading, Rule 11 is a prime example. Second, it cannot be ignored that Rule 11 [hj allows for harmless error analysis. whereas harmless error does not 41 apply with respect to Catu errors (People v Hill, 9 NY3d 189 [20071).” This difference between the federal rule and the law in New York State is a palpable reminder that Rule 11 is not the law of New York State. Tellingly, in the instant case, defendant has been very careful in sidestepping a matter of no small importance. He has never actually averred that he was completely unaware of the consequences of violating the conditions of PRS (and did not base his claim of ineffective assistance of counsel on an assertion that counsel failed to so advise him), and has never actually said that he would not have accepted the plea bargain if he had known as much. The absence of a definitive and unambiguous declaration on defendant’s part that he was, in fact, unaware of this potential consequence and would not have plead guilty had he so known, together with the certainty that defendant’s sentencing exposure after trial was (and still is) 25 years imprisonment, and that PRS would have been imposed as a matter of course, defendant has not made the factual showing that would justify withdrawal of his plea. ‘Section [h] of Rule 11 provides that [a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.’ Notably, if defendant’s argument was subject to analysis under Rule 11, the claimed error would be considered harmless. Delendant was sentenced to a prison term often years; during the plea colloquy, the prosecutor advised defendant that he was pleading guilty to a class C violent felony for which the maximum sentence could be fifteen years in State prison” (A: 106). Thus, defendant had been advised that his total sentence (i.e.. including the potential 5-year term for violating the conditions of PRS) could be as much as i 5 years (see (iiiied Srates v Andrades. 169 F3d 131 . 133-1 34 [2d Cir 1999fl. 42 Whether this hedging reflects defendant’s inability to establish the factual predicate for the legal argument he proffers, or whether there is some other reason why he is being purposely coy, the cart is before the horse. Instead of committing himself to the factual position giving rise to the legal issue, defendant asks this Court to decide the legal issue and then to remand the case for him to establish entitlement to the remedy flowing from the issue being decided in his favor (Defendant’s Brief, at p. 30). Relatedly, given that the issue at hand was hardly prominent in his motion to withdraw his plea (and not even mentioned in his CPL 440.10 motion to vacate the judgment ofconviction), and in light ofthe far lengthier sentence he risked had he proceeded to trial (a sentence that would have necessarily included PBS, as does his Rockland County sentence), it makes little or no sense to conclude that information about the possible consequences ofviolating PBS (about which defendant may or may not have been aware), alone, would have caused defendant to reject the plea bargain, or that the absence ofthis information should be deemed of such significance that the resulting plea cannot stand as a voluntary, knowing, and intelligent choice. Of course, even ifdefendant had attested to facts that are so conspicuously missing, that would still not justify his guilty plea being automatically rendered 43 involuntary as a result of the court below not having explained the merely possible consequences of violating the as of yet unknown terms of PRS. In sum, even ignoring that what defendant asks of this Court is to render infirm almost every guilty plea involving a violent felony offense since the inception of PRS in 1996, defendant’s arguments represent a break with precedent. As the antithesis of a “definite, immediate and largely automatic” consequence of a plea, the inchoate possibility of further incarceration as a result of violating a condition of PRS is a “collateral” consequence about which a defendant need not be advised by the court in order for the resulting plea to constitute a voluntary and intelligent choice. Where a defendant has been duly advised of the term of PRS that is a mandatory part of his promised sentence, the lack of mention in the plea colloquy of this collateral consequence does not, as a matter of fundamental fairness, eviscerate the voluntariness of the resulting guilty plea. Drawing upon this Court’s words in Gravino (14 NY3d at 558), accepting defendant’s argument would convert every plea colloquy where PRS is part of the sentence into a ‘conjectural and contingent exercise.” In accordance with this Court’s precedent, the Appellate Division’s order should be affirmed. 44 CONCLUSION The Appellate Division’s order should be affirmed in all respects. Dated: White Plains, New York Pvlay 2,2012 Respectfully Submitted, JANET DiFIORE District Attorney of Westchester County 111 Dr. Martin Luther King, Jr. Blvd. White Plains, New York 10601 Telephone (914) 995-3497 Facsimile (914) 995-4672 By:___ aurieaa off Assistant District Attorney LAURIE SAPAKOFF STEVEN BENDER RICHARD LONGWORTH HECHI Assistant District Attorneys Of Counsel 45 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ss.: COUNTY OF WESTCHESTER) Gail M. Haddad, being duly sworn, deposes and says that on the 2nd day ofMay, 2012 she served one (1) copy of this Respondent’s Brief and Respondent’s Supplementary Appendix upon: Scott B. Tulman, Esq., Scott B. Tulman & Associates, PLL, 369 Lexington Avenue, 15th Floor, New York, New York 10017, by enclosing one (1) true copy in a securely sealed postpaid wrapper and depositing same in a Post Office Box regularly maintained by the United States Government in the City of White Plains, New York. Deponent further says that the party above is the attorney for the defendant-appellant herein and his last known address appearing from the last papers served by him on this Office is as stated above. Deponent is over the age of 18 years. .j2? Sworn to before me this 2nd day of May, 2012 74 (Notary Pb lie) VIRGINIA A. MARCIANO Notary Public, State of New York No. 02MA6198579 Qualified in New York County Commission Expires December 29, 2012