Opinion
2020–09749 Ind. No. 886/18
02-16-2022
The PEOPLE, etc., respondent, v. Lino RODRIGUEZ, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Kevin C. King and David L. Glovin of counsel), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Kevin C. King and David L. Glovin of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Nassau County (Robert A. McDonald, J.), rendered December 4, 2019, convicting him of sexual abuse in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of sexual abuse in the second degree, upon his plea of guilty. The defendant was sentenced, in accordance with the plea agreement, to a six-year term of probation. On appeal, the defendant contends that his plea of guilty was not knowingly, intelligently, or voluntarily entered because, although he was aware of the term of probation, the County Court failed to advise him of the consequences in the event that he violated the conditions of his probation supervision.
Initially, this contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea or otherwise raise the issue before the County Court (see People v. Coverdale, 189 A.D.3d 1610, 1610–1611, 136 N.Y.S.3d 335 ; People v. Murray, 186 A.D.3d 625, 126 N.Y.S.3d 665 ). In addition, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Barrow, 187 A.D.3d 1034, 1034–1035, 131 N.Y.S.3d 164 ).
In any event, the defendant's contention is without merit. "Trial courts are required to advise defendants who enter guilty pleas of the ‘direct consequences’ of their plea, but are not required to iterate every ‘collateral consequence’ of the convictions" ( People v. Monk, 83 A.D.3d 35, 37, 920 N.Y.S.2d 97, affd 21 N.Y.3d 27, 966 N.Y.S.2d 739, 989 N.E.2d 1, quoting People v. Harnett, 16 N.Y.3d 200, 205–206, 920 N.Y.S.2d 246, 945 N.E.2d 439 ; see People v. Gravino, 14 N.Y.3d 546, 553–554, 902 N.Y.S.2d 851, 928 N.E.2d 1048 ). "A direct consequence is one which has a definite, immediate and largely automatic effect on [a] defendant's punishment" ( People v. Monk, 83 A.D.3d at 37, 920 N.Y.S.2d 97 [internal quotation marks omitted]). "By contrast, collateral consequences are peculiar to the individual and generally result from the actions taken by agencies [that] the court does not control" ( id. at 38, 920 N.Y.S.2d 97 [internal quotation marks omitted]).
Here, while the imposition of a term of probation is a direct consequence of the defendant's plea (see People v. Harnett, 16 N.Y.3d at 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 ), the consequences of violating a term of probation are merely collateral, and thus, the County Court was under no obligation to so advise the defendant (see People v. Gravino, 14 N.Y.3d 546, 559, 902 N.Y.S.2d 851, 928 N.E.2d 1048 ). Indeed, the ramifications of violating the conditions of probation supervision are subject to the discretion of local probation departments whether to pursue a declaration of delinquency (see CPL 410.30 ), and, thus, are " ‘peculiar to the individual’ and the product of ‘actions taken by agencies the court does not control’ " ( People v. Monk, 21 N.Y.3d 27, 33, 966 N.Y.S.2d 739, 989 N.E.2d 1, quoting People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 ). Moreover, any such consequences are "speculative at the time of the guilty plea" ( People v. Monk, 21 N.Y.3d at 33, 966 N.Y.S.2d 739, 989 N.E.2d 1 ), are not "definite, immediate and largely automatic" ( id. [internal quotation marks omitted]; see CPL 410.70[5] ), and do not constitute a " ‘core component[ ]’ " of the sentence imposed on the defendant by the court to fulfill the bargain struck by the parties ( People v. Monk, 21 N.Y.3d at 33, 966 N.Y.S.2d 739, 989 N.E.2d 1, quoting People v. Harnett, 16 N.Y.3d at 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 ).
DUFFY, J.P., MILLER, ZAYAS and GENOVESI, JJ., concur.