Wednesday, February 13, 2013

In People v Belliard (2013 NY Slip Op 00884 [NY 2/12/13]), the Court of Appeals held that Courtsare not required to advise a defendant pleading guilty that it is mandatory that the sentence of imprisonment he will receive as a second felony offender will run consecutively to the undischarged portion of his previously imposed state sentence. With Chief Judge Lippman dissenting, the Court explained that the mandatory nature of the consecutive sentencing does not render that a direct, and not collateral consequence of the plea.

That a court is not so obligated, does not mean that defense counsel has no obligation to inform his client of the mandatory consequence of his plea. For example, in People v Cosby (82 AD3d 63 [4th Dept 2/11/11), the Appellate Division, Fourth Department held that while the trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so, " 'trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right' to testify at trial."

The Court's holding in Belliard that it is not a direct consequence of the plea that the sentence will run consecutively to the earlier sentence is far from dispositive as to counsel's obligations. For example, in Padilla v Kentucky (559 U.S. ___, 130 SCT  1473 [2010]), the Supreme Court held that regardless of whether the immigration consequences of a plea are described as direct or collateral, when deportation  is clearly a mandatory consequence, counsel has a duty to so advise. Arguably, the logic of Padilla applies to the mandatory consecutive sentence scenario considered by the Court in Bellliard.

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