author: Smith, J.

text:
    [929 NE2d 380, 903 NYS2d 318]
    Walter Adams, Respondent, v Genie Industries, Inc., Appellant.
    Argued March 23, 2010;
    decided May 11, 2010

      POINTS OF COUNSEL

      Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Richard E. Lerner, Philip A. Tumbarello and Patrick J. Lawless of counsel), for appellant.
    I. A manufacturer does not owe a continuing duty to “remedy” a product after it has left the manufacturer’s hands. (Braniff Airways, Inc. v CurtissWright Corp., 411 F2d 451; Cover v Cohen, 61 NY2d 261; Magadan v Interlake Packaging Corp., 45 AD3d 650; Power v Crown Equip. Corp., 189 AD2d 310; DeGroat v Consolidated Rail Corp., 298 AD2d 273; Village of Groton v Tokheim Corp., 202 AD2d 728; Frank v DaimlerChrysler Corp., 292 AD2d 118; Andrea v du Pont de Nemours & Co., 289 AD2d 1039; Kavanaugh v Nussbaum, 71 NY2d 535; Weigl v Quincy Specialties Co., 1 AD3d 132.) II. The law of this state is that a products liability plaintiff must show that a safer alternative design was actually available at the time of sale, and not merely that a safer design was theoretically feasible. (Magadan v Interlake Packaging Corp., 45 AD3d 650; McCarthy v Handel, 297 AD2d 444; Terry v Erie Foundry Co., 235 AD2d 414; Bouter v DurandWayland, Inc., 221 AD2d 902; Moore v Deere & Co., 195 AD2d 1044; Bolm v Triumph Corp., 71 AD2d 429; Voss v Black & Decker Mfg. Co., 59 NY2d 102; People v Wesley, 83 NY2d 417; Frye v United States, 293 F 1013; McCarthy v Handel, 297 AD2d 444; Johnson v Manitowoc Boom Trucks, Inc., 484 F3d 426.)

      Gentile & Associates, New York City (Laura E. Gentile of counsel), and Gurfein Douglas LLP (Richard Gurfein and Steven Aripotch of counsel) for respondent.
    I. The jury verdict was amply supported by plaintiffs proof based on strict liability and pre-sale negligent design. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Adamo v Brown & Williamson Tobacco Corp., 11 NY3d 545; Liriano v Hobart Corp., 92 NY2d 232; O’Bara v Piekos, 161 AD2d 1118; Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328; Liquore v Tri-Arc Mfg. Co., 32 AD3d 905; Miner v Long Is. Light. Co., 40 NY2d 372; Mercogliano v Sears, Roebuck & Co., 303 AD2d 566; Feiner v Calvin Klein, Ltd., 157 AD2d 501; Magadan v Interlake Packaging Corp., 45 AD3d 650.) II. Defendant asks this Court to stray beyond its jurisdiction by asking the Court to determine whether or not there is a post-sale duty of remedy. (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Ogino v Black, 304 NY 872; Mary Lincoln Candies, Inc. v Department of Labor, 289 NY 262; Coatsworth v Lehigh Val. Ry. Co., 156 NY 451; Lunney v Prodigy Servs. Co., 94 NY2d 242; Bradley v Earl B. Feiden, Inc., 8 NY3d 265; Kohl v Loffredo, 221 AD2d 679.) III. The pre-sale claims are not tainted by the post-sale claim. (Kavanaugh v Nussbaum, 71 NY2d 535; Weigl v Quincy Specialties Co., 1 AD3d 132; New England Mut. Life Ins. Co. v Detectives ’ Endowment Assn. of Police Dept. of City of N.Y., 174 AD2d 454, 79 NY2d 851; Doty v Navistar Intl. Transp. Corp., 219 AD2d 32, 89 NY2d 802; Heller v 83rd St. Invs. Ltd. Partnership, 228 AD2d 371; Caprara v Chrysler Corp., 52 NY2d 114; Silfverchiold v Hut Cab Corp., 251 AD2d 121; Bradley v Earl B. Feiden, Inc., 8 NY3d 265; Kroupova v Hill, 242 AD2d 218; Luce v St. Peter’s Hosp., 85 AD2d 194.) IV Defendant cannot complain about plaintiff’s discussion of decals and the instruction manual because defendant injected that issue into trial, forcing plaintiff to respond. V Defendant’s post-sale duty was breached by its failure to remedy the defect with the same interlock it could have and should have installed prior to the sale of the machine. (Romero v International Harvester Co., 979 F2d 1444; Smith v Firestone Tire & Rubber Co., 755 F2d 129; Syrie v Knoll Intl, 748 F2d 304; Braniff Airways, Inc. v Curtiss-Wright Corp., 411 F2d 451, 396 US 959, 424 F2d 427, 400 US 829; Savage Scripto-Tokai Corp., 266 F Supp 2d 344; Bastian v TPI Corp., 663 F Supp 474; Gracyalny v Westinghouse Elec. Corp., 723 F2d 1311; Cover v Cohen, 61 NY2d 261; Power v Crown Equip. Corp., 189 AD2d 310; Smith v Louis Berkman Co., 894 F Supp 1084.) VI. Public policy favors a continuing duty of care. (Liriano v Hobart Corp., 92 NY2d 232.)

      Goldberg Segadla LLP, Buffalo (Neil A. Goldberg, Matthew S. Lerner and Bryan Richmond of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.
    I. New York courts and courts throughout the nation do not recognize a duty to recall or retrofit, except in highly specialized markets. (Cover v Cohen, 61 NY2d 261; Eschenburg v Navistar Intl. Transp. Corp., 829 F Supp 210; Romero v International Harvester Co., 979 F2d 1444; Estate of Kimmel v Clark Equip. Co., 773 F Supp 828; Wallace v Dorsey Trailers Southeast, Inc., 849 F2d 341; Smith v Firestone Tire & Rubber Co., 755 F2d 129; Syrie v Knoll Intl., 748 F2d 304; National Women’s Health Network, Inc. v A. H. Robins Co., Inc., 545 F Supp 1177; Braniff Airways, Inc. v Curtiss-Wright Corp., 411 F2d 451; Noel v United Aircraft Corp., 342 F2d 232.) II. The Appellate Division’s decision and order should be reversed because it is based on an overstatement of case law and essentially imposes a new duty of care without considering traditional factors. (Cover v Cohen, 61 NY2d 261; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222.)
   OPINION OF THE COURT

Smith, J.

Plaintiff sues for injuries sustained when he fell from a personnel lift designed, manufactured and sold by defendant, Genie Industries, Inc. The jury found that the product was defectively designed, and we hold that the evidence was sufficient to support that finding. We agree with Genie that the trial court erred in submitting to the jury, as an alternative ground for liability, the question of whether Genie was negligent in failing to retrofit or recall the product after its sale, but we hold that under the circumstances of this case that error was harmless.

I

The personnel lift at issue consists, essentially, of a basket in which one person can stand, mounted on a narrow, wheeled base. The basket is attached to a vertical cylinder, and wired so that the person in the basket can cause it to go up and down by pressing buttons. Genie sold the lift to plaintiffs employer in 1986. On July 29, 1997, plaintiff, a maintenance man, was using it to install a block and tackle in an elevated spot. When he was about 12 feet off the ground, the lift tipped over and plaintiff fell to the floor.

There was evidence from which the jury could find that the use of outriggers would have prevented the accident. Outriggers are essentially legs that extend diagonally from the base of the personnel lift to the floor, thus spreading the weight of the lift and making it more stable. Genie sold the lift with outriggers, but the outriggers were detachable, so that the lift, when not in use, could be moved through narrow openings like doorways. A label attached to the lift warns: “All outriggers must be installed before operating.” But it seems that plaintiffs employer ignored the warning, and that the outriggers were lost—at least, none were to be found on the day of plaintiffs accident.

Plaintiffs principal theory, and the only one we need to consider, is that the design of the lift was defective because the outriggers were not “interlocked.” An interlock is a means of interrupting automatically the operation of a machine; it is familiar, for example, to users of washing machines and elevators that cannot run when their doors are open. Plaintiff claims that Genie’s personnel lift should have been designed similarly, so that it could not be operated unless the outriggers were in place.

The trial court submitted a number of questions to the jury, among them whether the product was defective; whether Genie was negligent in putting it on the market in 1986; and whether Genie was negligent “from June 1986 until plaintiffs accident in July 1997.” The jury answered all three of these questions yes, found in plaintiffs favor on other liability-related issues, and awarded damages including $100,000 for past pain and suffering and $400,000 for future pain and suffering. The trial court denied defendant’s motion to set the verdict aside, but granted plaintiffs motion for additur, ordering a new trial on the issue of past and future pain and suffering damages unless Genie agreed to increase those awards to $500,000 and $750,000 respectively (2007 NY Slip Op 34459[U]). The Appellate Division affirmed (53 AD3d 415 [2008]). Following the affirmance, Genie stipulated to the additur, and the Appellate Division granted Genie leave to appeal to this Court.

II

Before turning to the merits, we must decide whether Genie has a right to appeal from the Appellate Division’s order. Plaintiff argues that it does not, asserting that, because Genie agreed to the additur, it is not an “aggrieved party” within the meaning of CPLR 5511 (“An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party”). We reject plaintiffs argument.

It has long been and remains the rule that parties who stipulate to a modification of damages as an alternative to a new trial are not aggrieved by that modification and may not appeal from it (Dudley v Perkins, 235 NY 448, 457 [1923]). Here, however, Genie is not seeking to appeal from the modification— the additur—to which it consented. It raises no issue as to the additur in this Court, but claims that it has no liability to plaintiff at all—that the case should never have been submitted to the jury—or, in the alternative, that it is entitled to a new liability trial. The Appellate Division rejected these arguments, which Genie has never agreed to abandon, and it therefore seems logical to conclude that Genie is aggrieved by the Appellate Division’s order.

Plaintiffs contrary argument, however, finds support in several of our decisions, which apply the Dudley v Perkins rule more broadly than it is stated in Dudley. In Batavia Turf Farms v County of Genesee (91 NY2d 906 [1998]), we dismissed an appeal in a brief entry, saying:

“[A] party who, as a result of a conditional order, has stipulated at the trial or appellate court to a reduction in damages in lieu of a new trial on a cause of action, foregoes all further review of other issues raised by that order, including those pertaining to any other cause of action, and is therefore not a party aggrieved.”

In Batavia, we cited a footnote in Whitfield v City of New York (90 NY2d 777, 780 n [1997]), which states the rule similarly and cites in turn several earlier cases. Those earlier cases (Plotkin v New York City Health & Hosps. Corp., 88 NY2d 917 [1996]; Sharrow v Dick Corp., 84 NY2d 976 [1994]; Sogg v American Airlines, 83 NY2d 846 [1994]; Gilroy v American Broadcasting Co., 43 NY2d 825 [1977]) do not explicitly state, but are consistent with, Batavia’s and Whitfield’s broader version of the rule.

The rationale underlying this broader application of Dudley, by which a stipulation on one issue could foreclose an appeal on other, unrelated issues, was that the stipulation did not merely resolve an issue, but also fulfilled a condition for the existence of the order in question. It was thought that a party who had consented to the order’s existence could not claim to be aggrieved by any part of it. However, we now reexamine the Batavia/Whitfield rule, and conclude that it is not justified. It is unfair to bar a party from raising legitimate appellate issues simply because that party has made an unrelated agreement on the amount of damages. Indeed, the Batavia rule may operate as a trap; parties stipulating to additur and remittitur are likely not to foresee the counterintuitive result that all their appellate claims will be forfeited.

Thus, Batavia and the Whitfield footnote, to the extent that they go beyond the original Dudley v Perkins holding, should no longer be followed. Genie is a party aggrieved, and we proceed to consider the merits of its appeal.

Ill

Our leading case on what is required to prove a design defect is Voss v Black & Decker Mfg. Co. (59 NY2d 102 [1983]). We said in Voss:

“In order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs injury.” (Id. at 107.)

We explained in Voss what it means to say that a product is “not reasonably safe.” The issue, we said, is: “whether ... if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.” (Id. at 108.)

We added:

“It will be for the jury to decide whether a product was not reasonably safe in light of all the evidence presented by both the plaintiff and defendant. The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likeli- ' hood of harm and it was feasible to design the product in a safer manner. The defendant manufacturer, on the other hand, may present evidence in opposition seeking to show that the product is a safe product—that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost.” (Id. [citations omitted].)

Voss was a strict products liability case, and we tried in Voss to draw a distinction between such cases and cases based on the allegedly negligent design of products (see id. at 107). We later acknowledged, however, that that line-drawing effort had not been successful. In Denny v Ford Motor Co. (87 NY2d 248, 258 [1995]), we quoted with approval the remark of a commentator that “[i]n general, . . . the strict liability concept of ‘defective design’ [is] functionally synonymous with the earlier negligence concept of unreasonable designing” (Schwartz, New Products, Old Products, Evolving Law, Retroactive, Law, 58 NYU L Rev 796, 803 [1983]). Thus, while plaintiff here has pleaded both strict liability and negligent design causes of action, the standards set forth in Voss apply to both. The decisive question is whether plaintiff has produced enough evidence for a jury to find that Genie’s product—a personnel lift without interlocked outriggers—was “not reasonably safe” as Voss defines the term.

The evidence clearly showed that the use of outriggers would have made the product safer. Expert testimony explained that outriggers would have expanded the product’s “footprint,” making it more stable by distributing its weight over a wider area. Indeed, Genie’s own label warned against using the product without outriggers. It is thus reasonable to conclude that an interlock, making use without outriggers impossible, would have increased the safety of the product.

Plaintiff also offered evidence from which a jury could find that, in 1986 when the product was sold, it was technologically possible, at minimal cost, to design the product with interlocked outriggers. A qualified expert so testified, and illustrated his point with a model that he had created of Genie’s machine, to which he had added a half dozen switches, of a kind available in the late 1980s for $20 to $25 each. The switches, as the expert demonstrated to the jury, effectively prevented the machine from operating without outriggers in place. Genie pointed out differences between the expert’s model and its machine, but none so dramatic as to preclude the jury from finding that the model fairly corresponded to the product in dispute. Plaintiffs expert also testified that the idea of an interlock was not novel in 1986; indeed, he testified without contradiction that the first patent for an interlock and interlocking device was issued in 1868.

Genie points out that a finding that its product was “not reasonably safe” may not rest merely on a showing that a safer product was theoretically possible at the time the machine was made. In this Genie is correct, but plaintiffs evidence showed more than a theoretical possibility of a safer machine. A former employee of Genie testified that he had mentioned the idea of interlocked outriggers to the company’s vice-president of manufacturing in 1985—the year before the machine in dispute was sold—and had obtained approval to present the idea to a committee setting standards for the industry. Perhaps even this evidence, if there were no more, would not suffice, because a proposed change in standards proves “only that a better way was thought possible, not that balancing risks and benefits of both the existing way was not reasonably safe” (Cover v Cohen, 61 NY2d 261, 272 [1984]). But there was more: plaintiffs evidence showed not only that the better way was “thought possible,” but that it had actually been implemented. The former Genie employee testified that in 1985 he had seen, and Genie had purchased, a competitor’s personnel lift with interlocked outriggers.

This evidence, we conclude, was enough to support the jury’s verdict that the product Genie sold to plaintiffs employer in 1986 was “not reasonably safe.” It is true that there was also evidence from which the jury could have reached the opposite conclusion. Plaintiff did not show that interlocked outriggers were commonly used—or, indeed, that more than one manufacturer included them in its product—in 1986. And Genie showed that the industry standard for personnel lifts promulgated by the American National Standards Institute did not call for interlocked outriggers in 1986. But the weight to be given the evidence for each side was up to the jury. Considering the record as a whole, we cannot say that the verdict in plaintiff’s favor on the strict liability and negligent design claims is without support.

IV

Genie argues that the trial court erred in submitting to the jury the question of whether Genie’s post-sale conduct—its conduct between 1986, when it sold the product, and 1997, when plaintiff was injured—was negligent. We agree, but find the error to be harmless.

Our decisions make clear that, in general, the duty of the seller of a product who discovers, after the sale, risks that were not known beforehand is a duty to warn (Cover, 61 NY2d at 274-275; see also Liriano v Hobart Corp., 92 NY2d 232, 240 [1998]). In this case, there can be no successful claim that Genie breached any duty to warn, either pre-sale or post-sale. Supreme Court held, on a pretrial motion, that the warning contained in Genie’s product label was adequate, and that holding is not challenged here. We have never imposed a post-sale duty to recall or retrofit a product, and the facts of this case provide no justification for creating one (cf. Braniff Airways, Inc. v Curtiss-Wright Corp., 411 F2d 451, 453 [2d Cir 1969] [duty “at least” to warn of a defect discovered post-sale in an airplane engine]). Thus the jury should not have been permitted to find that Genie was negligent in failing to recall or retrofit its product after the 1986 sale.

The trial court’s error in submitting this theory to the jury, however, had no impact on the outcome of the case. Plaintiff s post-sale negligence claim, as presented at trial, was no more than a duplicate of his design defect and negligent design claims. Plaintiff presented no evidence of any facts that came to Genie’s attention after the sale that might have triggered a new duty; plaintiff merely asserted that Genie should have recalled or retrofitted the personnel lift for the same reasons that it should not have sold it in the first place—principally, because the outriggers were not interlocked. Genie points to no evidence admitted on the post-sale negligence claim that would have been inadmissible on the other claims, and identifies no way in which the court’s error in submitting one claim might have tainted the jury’s verdict on the others. The error was harmless.

V

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Read, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [928 NE2d 1048, 902 NYS2d 851]
    The People of the State of New York, Respondent, v Tara Gravino, Appellant. The People of the State of New York, Respondent, v Robert W. Ellsworth, Appellant.
    Argued March 25, 2010;
    decided May 11, 2010

      POINTS OF COUNSEL

      Kathleen P. Reardon, Rochester, for appellant in the first above-entitled action.
    I. The trial court erred in failing to conduct a Gomberg inquiry. (People v Clarke, 93 NY2d 904; People v Lopez, 71 NY2d 662; People v Abar, 99 NY2d 406; People v Harris, 99 NY2d 202; People v Longtin, 92 NY2d 640; People v Berroa, 99 NY2d 134; People v McDonald, 68 NY2d 1; People v Gomberg, 38 NY2d 307.) II. Defendant’s conviction must be vacated under the second prong of the Gomberg test because defendant has established that her defense was affected by the existence of a conflict. (People v Recupero, 73 NY2d 877; People v McDonald, 68 NY2d 1; Holloway v Arkansas, 435 US 475; People v Harris, 99 NY2d 202; People v Alicea, 61 NY2d 23; People v Ortiz, 76 NY2d 652; People v Macerola, 47 NY2d 257.) III. A Gomberg inquiry is just as essential in a conviction resulting from a plea. (People v Recupero, 73 NY2d 877; People v Monroe, 54 NY2d 35, 455 US 947; People v McDonald, 68 NY2d 1; People v Longtin, 92 NY2d 640; People v Mourad, 13 AD3d 558; Hill v Lockhart, 474 US 52.) IV Counsel had an ethical obligation to avoid a conflicted counsel situation. V Failure to advise defendant of her impending Sex Offender Registration Act registration should result in vacation of the conviction. (People v Smith, 37 AD3d 1141; People v Catu, 4 NY3d 242; People v Ford, 86 NY2d 397.)

      Richard M. Healy, District Attorney, Lyons (Christopher Bokelman of counsel), for respondent in the first above-entitled action.
    I. The trial court did not err in failing to conduct a Gomberg inquiry because there was no evidence before the court of defendant’s counsel being conflicted in his representation of defendant. (People v Harris, 99 NY2d 202; People v Ortiz, 76 NY2d 652; People v Alicea, 61 NY2d 23; People v Coss, 19 AD3d 943; People v Henderson, 11 AD3d 366.) II. Defendant’s guilty plea was voluntarily made, and a lack of knowledge does not make the plea involuntary. (People v Dorsey, 28 AD3d 351; People v

      Vere, 44 AD3d 690; People v Nash, 48 AD3d 837; People v Smith, 37 AD3d 1141; People v Stevens, 91 NY2d 270; People v Coss, 19 AD3d 943.) III. As defendant’s arguments are based on matters outside the record, a CPL article 440 motion to vacate the judgment is the proper mechanism to seek redress. (People v Henderson, 11 AD3d 366.)

      Kathleen B. Hogan, District Attorney, White Plains (Steven A. Bender and Anthony J. Servino of counsel), for District Attorneys Association of the State of New York, amicus curiae in the first above-entitled action.
    The Sex Offender Registration Act (SORA) is a collateral, not direct, consequence of a sex offender’s conviction; thus, the court’s failure to advise defendant of her duties under SORA does not, alone, undermine the voluntary, knowing and intelligent guilty plea made; while it is preferable for the court to make a record of the prior representation, the failure to do so does not warrant relief for defendant and to the extent defendant asserts a broader claim of trial counsel’s ineffectiveness, that claim is based on facts outside the appellate record, and is more properly pursued under CPL 440.10. (People v Windham, 10 NY3d 801; People v Louree, 8 NY3d 541; People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9; Boykin v Alabama, 395 US 238; Cuthrell v Director, Patuxent Inst., 475 F2d 1364, 414 US 1005; Brady v United States, 397 US 742; Shelton v United States, 242 F2d 101, 246 F2d 571, 356 US 26; People v Alemany, 13 NY3d 424; People v Mingo, 12 NY3d 563.)

      Goodell & Rankin, Jamestown (R. Thomas Rankin of counsel), for appellant in the second above-entitled action.
    Appellant’s plea was neither knowing nor voluntary nor intelligent. (Matter of Tammie Z., 66 NY2d 1; Matter of Marie B., 62 NY2d 352; Matter of Leon RR, 48 NY2d 117; Matter of Ella B., 30 NY2d 352; Santosky v Kramer, 455 US 745; Lassiter v Department of Social Servs. of Durham Cty., 452 US 18; People v Catu, 4 NY3d 242; Brady v United States, 397 US 742; People v Ford, 86 NY2d 397; People v Seaberg, 74 NY2d 1.)

      David W Foley, District Attorney, Mayville (Tracey A. Brunecz of counsel), for respondent in the second above-entitled action.
    Defendant’s plea was knowing, voluntary and intelligent. (People v Ford, 86 NY2d 397; People v Latham, 90 NY2d 795; People v Catu, 4 NY3d 242; People v Nixon, 21 NY2d 338; People v Grant, 45 NY2d 366; People v Coles, 62 NY2d 908; People v Crimmins, 36 NY2d 230; People v Hill, 9 NY3d 189.)
   OPINION OF THE COURT

Read, J.

We hold that because they are collateral rather than direct consequences of a guilty plea, Sex Offender Registration Act (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 1½ to 3 years in prison. During the plea colloquy, Gravino told County Court that she was satisfied with her attorney. The judge did not inform Gravino that she would have to register as a sex offender under the Sex Offender Registration Act (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”; 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 postconviction 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 concerned] matters outside the record [which] thus must be raised by way of a CPLR article 440 motion” (62 AD3d 1259, 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 (12 NY3d 925 [2009]), 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 [1] [a]) 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 § 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 Ellsworth’s conclusory assertions were insufficient to entitle him to relief. County Court agreed, and denied the motion without a hearing.

Ellsworth also appealed his judgment of conviction on the ground that his guilty plea was involuntary. A unanimous Appellate Division concluded, however, that his guilty plea was knowing, voluntary and intelligent (59 AD3d 989 [4th Dept 2009]). A Judge of our Court granted Ellsworth leave to appeal (12 NY3d 924 [2009]), and we now affirm.

II.

The outcome of these appeals turns on the application of our precedent in People v Ford (86 NY2d 397 [1995]). There, we emphasized that a trial court may accept a guilty plea only after fulfilling its constitutional duty to “ensure that [the] defendant . . . has a full understanding of what the plea connotes and its consequences” (id. at 402-403). Although “the court is not required to engage in any particular litany when allocuting the defendant,” due process mandates that “ ‘the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’ ” (id. at 403, quoting North Carolina v Alford, 400 US 25, 31 [1970]).

Because “a criminal court is in no position to advise on all the ramifications of a guilty plea,” though, we observed in Ford that courts have traditionally drawn a distinction between direct consequences of a guilty plea, of which a defendant must be apprised during the plea colloquy, and collateral consequences, which the trial judge may, but need not, mention (id.). Further, we defined a direct consequence as having “a definite, immediate and largely automatic effect on [a] defendant’s punishment” (id., citing Cuthrell v Director,; Patuxent Inst., 475 F2d 1364 [4th Cir 1973], cert denied 414 US 1005 [1973]; see also Brady v United States, 397 US 742, 755 [1970] [voluntary guilty pleas are made “by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel” (emphasis added and internal quotation marks omitted)]).

Thus, we held in Ford that “[t]he failure to warn of . . . 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” (86 NY2d at 403). Specifically, we concluded that the trial court was under no duty to warn the defendant of the possibility of deportation before accepting his guilty plea because “[d]eportation [was] a collateral consequence of conviction . . . peculiar to the individual’s personal circumstances and one not within the control of the court system” (id.).

We next considered our Ford precedent in People v Catu (4 NY3d 242 [2005]). Because Catu was a second felony offender, his sentence for the crimes to which he pleaded guilty included a mandatory period of five years of postrelease supervision. The trial judge did not inform Catu of this obligation during the plea colloquy. As a result, Catu subsequently sought to vacate his guilty plea on the ground that postrelease supervision was a direct, rather than a collateral, consequence of his conviction, which the judge was therefore required to make known to him before accepting his guilty plea.

We agreed. We noted that postrelease supervision was a component of a sentence, and “[w]hereas the term of supervision to be imposed [might] vary depending on the degree of the crime and the defendant’s criminal record, imposition of supervision [was] mandatory and thus ‘ha[d] a definite, immediate and largely automatic effect on [a] defendant’s punishment’ ” (id. at 244, quoting Ford, 86 NY2d at 403). We recognized that postrelease supervision was “significant” in light of the conditions to which a defendant might be subject after release from prison—e.g., curfew, travel restrictions, substance abuse testing and treatment, residential treatment— and the risk of reincarceration for disobedience of release conditions (id. at 245).

We therefore concluded that “a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action”; and decided that the trial court’s failure to advise Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction (id.). Further, although the trial court and the Appellate Division had both engaged in harmless-error analysis, “refusing] ... to vacate [Catu’s] plea on the ground that he did not establish that he would have declined to plead guilty had he known of the postrelease supervision” (id.), we specifically rejected this approach (cf. n 6, infra at 557-558).

III.

Graving

Gravino protests that she “was not informed that she was required to register as a sex offender until she was being led away to prison following her sentencing”; and therefore her guilty plea was not knowing, voluntary and intelligent. She argues that SORA registration, like postrelease supervision, “should fall within the realm of a ‘direct’ consequence” of a guilty plea, principally “because of the ramifications of being identified as a sex offender.” She contrasts the “abbreviated periods” of postrelease supervision with the SORA requirement for annual registration and verification for a minimum period of 20 years (level one sex offenders) to a maximum period of lifetime (levels two and three sex offenders) (Correction Law § 168-h), subject to felony penalties for failure to comply (Correction Law § 168-t).

Postrelease supervision, however, is, by statute, a component element of a sentence, which is why a judge must pronounce the period of postrelease supervision at sentencing (see People v Sparber, 10 NY3d 457, 469 [2008]); it is thus an integral part of the punishment meted out upon a defendant’s conviction of a crime. By contrast, we have observed that SORA “is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime” (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 752 [2007] [citation omitted and emphases added]).

Similarly, we have held that “o SORA risk-level determination is not part of a defendant’s sentence[;] . . . it is a collateral consequence of a conviction for a sex offense designed not to punish, but rather to protect the public” (People v Windham, 10 NY3d 801, 802 [2008] [citations omitted and emphases added]). The extent and nature of the conditions imposed on a SORA registrant—i.e., the consequences of SORA registration—turn upon the risk classification. The Board of Examiners of Sex Offenders, an administrative agency, recommends a released offender’s risk classification based on the SORA Guidelines (Correction Law § 168-Z), subject to judicial determination (Correction Law § 168-n). These consequences are not known at the time a court accepts a guilty plea, and therefore cannot have a “ ‘definite, immediate and largely automatic effect on [a] defendant’s punishment’ ” (Catu, 4 NY3d at 244, quoting Ford, 86 NY2d at 403).

Unquestionably, SORA imposes significant burdens on a registrant, regardless of risk level. But we have consistently held that SORA requirements, unlike postrelease supervision, are not part of the punishment imposed by the judge; rather, SORA registration and risk-level determinations are nonpenal consequences that result from the fact of conviction for certain crimes. Thus, SORA registration is not a “direct consequence” of a conviction within the meaning of Ford as interpreted in Catu. Indeed, “virtually every . . . jurisdiction to address the question” has likewise concluded that sex offender registration is a collateral consequence of a guilty plea (see Magyar v State, 18 So 3d 807, 812 and n 5 [Miss 2009] [gathering cases]; see also State v Bollig, 232 Wis 2d 561, 571-573, 605 NW2d 199, 203-204 [2000] [“Of the states that have addressed whether registration of sex offenders is punishment, all but one . . . answered in the negative.[] Despite variations . . . statutes in most states are remarkably similar. That is because most state statutes have the same genesis and are versions of Megan’s Law”]). Finally, as the Appellate Division pointed out, Gravino’s claim of ineffective assistance of counsel brings up matters not apparent from the face of the record, which are therefore properly fleshed out by affidavit in support of a CPL 440.10 motion rather than raised on direct appeal.

Ellsworth

Ellsworth, a level three sex offender, argues that County Court’s “authority to exercise control over [his] ability to have contact with [his] children” is a direct consequence of his guilty plea within the meaning of Ford and the holding of Catu. He therefore faults the judge for not informing him during the plea colloquy that he “would lose the fundamental right to have any contact, or live with” his young children.

But courts taking guilty pleas cannot be expected to predict any and every potential condition of probation that might be recommended in the presentence report—an impossible task given the individualized nature of probation supervision. Here, as noted earlier, the judge ultimately imposed three general and 18 special conditions of probation. Moreover, these conditions may be modified or enlarged by the court at any time before the expiration or termination of the period of probation (CPL 410.20 [1]). Indeed, one of the special conditions acknowledges the-judge’s discretion to require Ellsworth to comply with unspecified additional conditions later on. Accepting Ellsworth’s argument would convert every plea colloquy where probation is part of the sentence into a conjectural and contingent exercise, potentially requiring at least partial reallocution at sentencing; it might also create a disincentive for the offender to cooperate fully with the preparer of the presentence report, lest more onerous conditions than those provisionally identified be recommended.

In Catu we held that postrelease supervision is a direct consequence of a conviction, and therefore a defendant must be advised of the fact and length of postrelease supervision during the plea colloquy in order for a guilty plea to be knowing, voluntary and intelligent. We did not suggest that the judge was required to speculate on the conditions to which a defendant might be subject after release from prison. Likewise, it was sufficient here that Ellsworth was made aware during the plea colloquy that his sentence would include a 10-year period of probation.

We decide today that SORA registration and the terms and conditions of probation are not direct consequences of a plea—in other words, that the judge’s failure to mention them does not, by itself, demonstrate that a plea was not knowing, voluntary and intelligent. It does not necessarily follow, though, that nondisclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There may be 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.

As the record demonstrates, neither of the cases before us fits this description, and indeed such cases will be rare. Undoubtedly, in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long. But it may occasionally happen that a defendant, moving to withdraw his plea promptly after disclosure of the facts in question, can convincingly show that the newly discovered information, if known at the time of the plea, would have caused a change of heart. Where that is true, the motion to withdraw the plea will not be defeated simply by labeling a consequence “collateral.”

Accordingly, the orders of the Appellate Division should be affirmed in both of these cases.

Ciparick, J. (dissenting).

Because I believe that Sex Offender Registration Act (SORA) certification and subsequent registration and the restriction of contact with one’s children as a condition of probation are direct consequences of a guilty plea of which a defendant must be informed to make that plea knowing, voluntary and intelligent, I respectfully dissent.

To be valid, a defendant’s guilty plea must be knowing, voluntary and intelligent (see People v Catu, 4 NY3d 242, 245 [2005]). In order to constitute a knowing, voluntary and intelligent plea, the trial court has a duty to ensure that a defendant is aware of the direct consequences of such plea (see id. at 244-245; see also People v Boyd, 12 NY3d 390, 393 [2009]; People v Ford, 86 NY2d 397, 403 [1995]). Accordingly, a trial court may permit a defendant to plead guilty only after the court first ensures “that a defendant . . . has a full understanding of what the plea connotes and its consequences” (Ford, 86 NY2d at 402-403). However, a trial court has no duty to inform a defendant of collateral consequences of a guilty plea (see Catu, 4 NY3d at 244). We have defined a “collateral consequence” as one which is “peculiar to the individual [defendant] and generally result [s] from the actions taken by agencies the court does not control” (id., quoting Ford, 86 NY2d at 403). On the other hand, a “direct consequence” is “one which has a definite, immediate and largely automatic effect on defendant’s punishment” (id.).

In Catu, we concluded that postrelease supervision (PRS) was a direct consequence of a conviction which must be disclosed to a defendant in order to render a guilty plea knowing, voluntary and intelligent. We explained:

“Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision, and defined each determinate sentence to also include, as a part thereof, an additional period of post-release supervision. Whereas the term of supervision to he 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” (4 NY3d at 244 [citations, internal quotation marks and brackets omitted; emphasis added]).

We also observed that PRS can have onerous terms including, but not limited to, a curfew, travel restrictions, and substance abuse treatment and/or testing. Moreover, we noted that a “violation of a condition of postrelease supervision can result in reincarceration for at least six months and up to the balance of the remaining supervision period” (id. at 245 [citations omitted]).

Under the rubric we set forth in Ford and further explained in Catu, SORA registration is a direct consequence of defendant Gravino’s guilty plea. The majority insists that SORA registration is not a direct consequence because we have held that it is “not part of the punishment imposed by the judge” (see majority op at 556). Moreover, the majority differentiates postrelease supervision from SORA registration on the ground that postrelease supervision “is, by statute, a component element of a sentence” (id. at 556, citing People v Sparber, 10 NY3d 457, 469 [2008]). We have never held that a consequence of a criminal conviction must be a component of a defendant’s sentence in order to constitute a direct consequence thereof (see Ford, 86 NY2d at 403; Catu, 4 NY3d at 244-245). Instead, we have held that direct consequences must have an effect on a defendant’s punishment. As a result, the majority’s stance cannot be reconciled with our holdings in Ford and Catu.

Although the terms of SORA registration will vary depending on the level of classification, the imposition of SORA certification—leading to mandatory compliance with SORA requirements—is, like PRS, mandatory. Significantly, in this regard, Correction Law § 168-d (1) (a) states: “[U]pon conviction . . . the court shall certify that the person is a sex offender and shall include the certification in the order of commitment” (emphasis added). The statute requires that the trial court “shall also advise the sex offender of his or her duties under this article” (emphasis added). Although a SORA risk-level determination has been held to be not part of a sentence, we have concluded that the trial court’s mandatory certification that a defendant is a sex offender is an appealable and reviewable part of the judgment of conviction (People v Hernandez, 93 NY2d 261, 267 [1999]). Thus, like postrelease supervision, the certification that a defendant is a sex offender—and, accordingly, subject to the requirements of SORA—is “a definite, immediate and . . . automatic effect” of a defendant’s conviction (Catu, 4 NY3d at 244 [citation and internal quotation marks omitted]). While it is true that we have held that the particular risk-level determination made for a specific defendant is a collateral consequence not subject to attack on direct appeal from a judgment of conviction (see People v Windham, 10 NY3d 801, 802 [2008]), here defendant challenges not the specific risk-level determination but the fact that she was certified a sex offender subject to SORA requirements.

Moreover, as the majority recognizes (see majority op at 556), the consequences of SORA registration are “significant” (Catu, 4 NY3d at 245) and can include up to, for a level two or three offender, lifetime registration (see Correction Law § 168-h [2]), verification of address every 90 days (see § 168-h [3] [level three offenders]) with fees to be paid by the sex offender for each change of address (see § 168-b [8]), and the dissemination to the public of the sex offender’s personal information via the Internet (see § 168-q [1]). Even sex offenders posing the lowest risk (level one) are subject to annual registration and residency verification for a period of 20 years (§ 168-h [1]). As with post-release supervision, failure to comply with the requirements of SORA can result in a felony conviction (see § 168-t).

In short, Gravino’s certification as a sex offender was an automatic and immediate consequence of her conviction for rape in the third degree. Thus, I would hold that sex-offender certification is a direct consequence of Gravino’s guilty plea and, without informing Gravino that she would be subject to SORA certification, her guilty plea cannot be said to “represente ] a voluntary and intelligent choice among the alternative courses of action open to” her (North Carolina v Alford, 400 US 25, 31 [1970]).

Similarly, I would hold that a condition of probation that prohibits defendant Ellsworth from living with his children is a most significant and direct consequence of his guilty plea. I agree with the majority that “courts taking guilty pleas cannot be expected to predict any and every potential condition of probation that might be recommended in the presentence report” (majority op at 558). It is hardly unforeseeable, however, that upon a conviction for course of sexual conduct against a child in the second degree, defendant would be forbidden, as a term of his probation, from living with or having contact with children, including his own. Indeed, the record reflects that both the presentence interviewer and the prosecutor believed such a condition to be a mandatory component of defendant’s probation. Thus, it does not appear that the particular condition at issue was “peculiar to the individual” defendant (see Ford, 86 NY2d at 403). Moreover the condition that defendant not live with or have contact with children was “within the control of’ the sentencing court (id.), as that court had it within its discretion to adjust the conditions imposed.

We have repeatedly recognized that parents’ interest in the care and custody of their children is a fundamental right (see Matter of Tammie Z., 66 NY2d 1, 4 [1985], citing Matter of Ella B., 30 NY2d 352, 356 [1972]; see also Santosky v Kramer, 455 US 745, 758-759 [1982]). Accordingly, I would hold that where a defendant, as a direct consequence of his plea, is stripped of that right as a largely automatic condition of a sentence imposed for a sex crime involving children, the defendant must be informed of that direct consequence in order to render the guilty plea knowing, voluntary and intelligent, and County Court’s failure to do so here rendered Ellsworth’s plea invalid.

Accordingly, in both cases, I would reverse the order of the Appellate Division and remit to the sentencing courts for further proceedings.

Judges Graffeo, Smith and Pigott concur with Judge Read; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Lippman and Judge Jones concur.

In each case: Order affirmed.

      . Just before the Huntley hearing was to be held, the public defender’s office, which was then representing Gravino, discovered a conflict with the complaining witness. The judge contacted an attorney who had previously handled felony cases in his court, and this attorney agreed to be Gravino’s assigned counsel.

      . Nothing in the record on appeal reflects any earlier discussions about assigned counsel’s potential conflict of interest.

      . In 1995, the same year we decided Ford, the Legislature adopted Criminal Procedure Law § 220.50 (7). This provision directs trial courts to advise non-citizen defendants, on the record, of certain potential consequences of a guilty plea related to their immigration status, but specifies that neglect to do so does not “affect the voluntariness of a plea of guilty or the validity of a conviction.”

        . We also held in Ford that the failure of the defendant’s attorney to warn him of the possibility of deportation as a result of his guilty plea did not state grounds for ineffective assistance of counsel under Strickland v Washington (466 US 668 [1984]), although we left open the possibility that affirmative misstatements by counsel might have done so (Ford, 86 NY2d at 405; see also People v McDonald, 1 NY3d 109, 111 [2003] [“(U)nder certain circumstances, a defense counsel’s incorrect advice as to deportation consequences of a plea may constitute ineffective assistance of counsel”]). The United States Supreme Court just recently held, however, that the Sixth Amendment requires criminal defense attorneys to advise their immigrant clients of the deportation consequences of a guilty plea, although the “[l]ack of clarity in the law . . . will affect the scope and nature of counsel’s advice” (Padilla v Kentucky, 559 US —, — n 10, 130 S Ct 1473, 1483 n 10 [2010]). The Court noted that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland” (559 US at —, 130 S Ct at 1481 [internal quotation marks omitted]); however, “[w]hether that distinction [was] appropriate [was] a question” that the Court decided that it “need not consider” in Padilla since deportation had been “long recognized . . . [as] a particularly severe ‘penalty,’ [although] not, in a strict sense, a criminal sanction” and thus was “uniquely difficult to classify as either a direct or a collateral consequence” (559 US at —, 130 S Ct at 1481-1482 [citation omitted and emphasis added]).

      . The dissent treats all consequences of conviction as punishment (see dissenting op at 562 [“(L)ike postrelease supervision, the certification that a defendant is a sex offender . . . is a definite, immediate and . . . automatic effect of a defendant’s conviction” (internal quotation marks omitted)]), thus obliterating the distinction between direct and collateral consequences. As an initial matter, “certification,” a duty of the court, is not the same as “registration,” an obligation imposed on a defendant. At sentencing, the trial judge must certify that a defendant convicted of a crime listed in the statute is a sex offender (see Correction Law § 168-d [1] [a]). If the sex offense includes a special factor, such as the age of the complainant, and the defendant challenges either the factor or an allegation that he has previously been convicted of a sexual offense or a sexually violent offense, the judge, prior to certification, must hold a hearing without a jury to determine whether the factor or the allegation is proven by clear and convincing evidence (Correction Law § 168-d [1] [b], [c]). Upon certification, either with or without a hearing, the judge must notify the defendant of the duty to register (Correction Law § 168-d [1] [a]). Further, although SORA registration is a consequence of a conviction of certain crimes, so is the possibility of deportation, or, as we mentioned in Ford, the “loss of the right to vote or travel abroad, loss of civil service employment, loss of a driver’s license, loss of the right to possess firearms or an undesirable discharge from the Armed Services” (86 NY2d at 403 [citations omitted]). These consequences, like SORA registration, are all collateral rather than direct because they do not have a “ ‘definite, immediate and largely automatic effect on [a] defendant’s punishment’ ” (Catu, 4 NY3d at 244, quoting Ford, 86 NY2d at 403 [emphasis added]; cf. dissenting op at 560).

      . California is the outlier (see Bunnell v Superior Ct., 13 Cal 3d 592, 605, 531 P2d 1086, 1094 [1975] [“In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements (including sex offender registration), if any, and, in appropriate cases the possibility of commitment (for narcotics addiction)” (citations omitted)]). A defendant is not automatically entitled to withdraw a guilty plea when a California trial court fails to advise of a sex offender registration requirement, though. First, absent a timely objection, a defendant waives the claim of error (see People v McClellan, 6 Cal 4th 367, 377, 862 P2d 739, 746 [1993] [where defense counsel was aware of probation officer’s report recommending that defendant register as a sex offender, filed 11 days before the sentencing hearing, “defendant waived his claim of error by failing at the sentencing hearing to interpose a timely objection to the registration requirement”]). Second, even where the claim of error is not waived, a defendant must establish prejudice—i.e., that he would not have pleaded guilty but for the trial court’s omission (McClellan, 6 Cal 4th at 378, 862 P2d at 746-747; see also People v Picklesimer, 48 Cal 4th 330, 344-345, 226 P3d 348, 358 [2010]).

      . The United States Supreme Court recently considered whether an attorney’s failure to advise a client of a consequence we deemed “collateral” in Ford—deportation—could constitute ineffective assistance of counsel sufficient to warrant the vacatur of a guilty plea (see Padilla v Kentucky, 559 US —, 130 S Ct 1473 [2010]). The Court concluded that a defense attorney does have a duty to advise his or her client that deportation is a possible consequence (see 559 US at —, 130 S Ct at 1482). Significantly, in determining whether the direct/collateral consequence dichotomy was useful to determine whether deportation advice was required, the Court stated
      “[although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the [civil] penalty from the conviction in the deportation context” (559 US at —, 130 S Ct at 1481 [citations and internal quotation marks omitted; emphasis added]).
      While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to divorce . . . from [a] conviction” (559 US at —, 130 S Ct at 1481 [internal quotation marks omitted]).

      . Although the majority accuses the dissent of “treat[ing] all consequences of conviction as punishment,” thereby “obliterating the distinction between direct and collateral consequences” (majority op at 557 n 5), I do not intend to “obliterate” any distinction. Rather, I believe that SORA certification and the resulting mandatory compliance with SORA requirements fall squarely within the ambit of “direct consequences” of a judgment of conviction, as we explained that term in Ford and Catu. Other consequences not relevant here may very well remain collateral (cf. Padilla, 559 US at —, 130 S Ct at 1481).


author: Graffeo, J.

text:
    [930 NE2d 176, 904 NYS2d 255]
    The People of the State of New York, Respondent, v Marcellus Pierce, Appellant.
    Argued January 14, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy, David C. Schopp and Barbara J. Davies of counsel), for appellant.
    Appellant’s superior court information (SCI) plea to criminal possession of stolen property in the third degree was illegal under CPL 195.10 (1) (a) and 195.20, as it was a higher charge than the one for which appellant was held for action of the grand jury. Further, the charges in the SCI are not “join-able.” Finally, the “joinable” provision of CPL 195.20 is unconstitutional. (People v Trueluck, 88 NY2d 546; People v Zanghi, 79 NY2d 815; People v Menchetti, 76 NY2d 473; People v Boston, 75 NY2d 585; People v Glover, 57 NY2d 61; People v Van Norstrand, 85 NY2d 131; People v D’Amico, 76 NY2d 877; People v Goforth, 36 AD3d 1202; People v Bushman, 130 Misc 2d 491; People v McClain, 24 AD3d 1271.)

      Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery and Donna A. Milling of counsel), for respondent.
    I. Neither the Criminal Procedure Law nor expository case authority prohibits joinder in a superior court information of a greater offense than that for which defendant was held for grand jury action. (People v Zanghi, 79 NY2d 815; People v Menchetti, 76 NY2d 473.) II. The joinder provision of the Criminal Procedure Law is consonant with article I, § 6 of the New York Constitution. (People v Bright, 71 NY2d 376; People v Menchetti, 76 NY2d 473; People v Shapiro, 50 NY2d 747; People v Trueluck, 88 NY2d 546.) III. The charges of third-degree criminal possession of stolen property and fourth-degree grand larceny are similar in law.
   OPINION OF THE COURT

Graffeo, J.

Defendant waived indictment and pleaded guilty to a superior court information (SCI) charging him with two offenses: grand larceny in the fourth degree, an offense for which he had been held for action by the grand jury in a superior court felony complaint; and criminal possession of stolen property in the third degree, a charge included on the theory that it was join-able with the grand larceny offense under Criminal Procedure Law §§ 195.20 and 200.20 (2) (c). Because the criminal possession offense was not properly joined with the grand larceny charge, defendant’s conviction must be reversed and the SCI dismissed.

The charges in this case arose from allegations that defendant committed two unrelated crimes in 2007. In January 2007, the People contend that defendant stole $1,100 by deceiving the victim into turning over his bank card and then withdrawing funds from the victim’s account. In connection with this incident, in addition to misdemeanor offenses charged in separate accusatory instruments, a felony complaint was filed in Buffalo City Court charging defendant with grand larceny in the fourth degree (Penal Law § 155.30 [1]). A few weeks later, defendant was allegedly found in possession of a vehicle that had previously been reported stolen. Defendant purportedly attempted to flee when stopped by the police and, after being placed under arrest, he was found with a pipe containing crack cocaine residue. This circumstance resulted in the filing of a felony complaint in Buffalo City Court charging defendant with criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]), as well as various misdemeanor charges.

On separate dates, defendant was arraigned on each set of charges in Buffalo City Court. Thereafter, defendant was held for action of the grand jury on the felony offenses and those matters were divested to Supreme Court. The local court felony complaint pertaining to the grand larceny charge was subsequently dismissed and, pursuant to a plea agreement reached with the defense, the District Attorney filed a new superior court felony complaint charging defendant with grand larceny in the fourth degree. In open court, defendant signed a written waiver of indictment and agreed to be prosecuted by SCI charging him with the same offense in the superior court felony complaint—grand larceny in the fourth degree—together with an additional offense of criminal possession of stolen property in the third degree. Defendant then allocated to his guilt on both charges with the understanding that concurrent sentences would be imposed and he would be treated as a second felony offender rather than a persistent felony offender. At sentencing, defendant was adjudicated a second felony offender based on two prior felony convictions and Supreme Court imposed the agreed-upon sentence of 3½ to 7 years on the possession of stolen property count and 1½ to 3 years on the grand larceny count, to be served concurrently.

Although he had waived his right to appeal when he entered his guilty plea, defendant appealed his conviction and, relying on our decision in People v Zanghi (79 NY2d 815, 817 [1991]), argued to the Appellate Division that the criminal possession of stolen property count was not properly included in the SCI. The Appellate Division affirmed the conviction (57 AD3d 1397 [2008]) and a Judge of this Court granted defendant leave to appeal (12 NY3d 786 [2009]).

The requirement that felony charges be prosecuted by indictment is grounded in the New York Constitution which, since 1974, has contained an exception allowing defendants to waive indictment under certain circumstances. Article I, § 6 provides:

“No person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury, except that a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel.”

Enacted to implement the constitutional amendment, Criminal Procedure Law article 195 established a procedure that allows for the waiver of indictment and prosecution by a new form of accusatory instrument—a superior court information defined in Criminal Procedure Law § 200.15 (see L 1974, ch 467). CPL 195.10 (1) states that

“[a] defendant may waive indictment and consent to be prosecuted by superior court information when:
“(a) a local criminal court has held the defendant for the action of a grand jury; and
“(b) the defendant is not charged with a class A felony . . . ; and
“(c) the district attorney consents to the waiver.”

CPL 195.20 directs that the waiver of indictment shall be in writing and further authorizes that “[t]he offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40.”

For purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the “same offense” and may be substituted for the original charge in a waiver of indictment and SCI (see People v Menchetti, 76 NY2d 473 [1990]). But there is an exception to this rule when the felony complaint charges a class A felony for which waiver of indictment is not permitted. In that case, a defendant generally may not agree to be prosecuted on an SCI that contains a lesser included offense since such a substitution would be nothing more than an “end run” around the statutory prohibition against the use of a waiver of indictment by a defendant held for grand jury action on a complaint charging such a class A felony (see People v Trueluck, 88 NY2d 546 [1996]; cf. People v D’Amico, 76 NY2d 877 [1990]).

“[T]he basic objective of article 195 was to permit waiver of indictment for defendants who wished to go directly to trial without waiting for a grand jury to hand up an indictment, to do so. The statutory procedures were thus aimed at affording a defendant the opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings” (People v Boston, 75 NY2d 585, 588-589 [1990] [internal quotation marks and citations omitted]).

The bill jacket for the legislation creating CPL article 195 also indicates that the new procedure was intended to facilitate plea bargaining (Mem by Staff Attorney of Law Rev Commn, Bill Jacket, L 1974, ch 467, at 5-6).

In this case, it is undisputed that the waiver of indictment and SCI were intended to effectuate a plea agreement between the People and the defense. In separate accusatory instruments, defendant was charged in local criminal court with grand larceny in the fourth degree, a class E felony relating to the theft incident, and criminal possession of stolen property in the fourth degree, a class E felony arising from the motor vehicle incident. The People then filed a superior court felony complaint charging defendant with the same fourth-degree grand larceny offense for which he had been held for action of the grand jury and defendant waived indictment and agreed to be prosecuted by SCI for that offense and the third-degree stolen property charge.

In placing those two offenses in the same SCI, the People relied on the joinder provision in CPL 195.20 directing that offenses for which indictment may be waived “include any offense for which the defendant was held for action of a grand jury” (here, the grand larceny offense in the superior court felony complaint) “and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40.” The People’s theory was that the stolen property charge could be joined with the grand larceny offense under CPL 200.20 (2) (c) because the two offenses were “the same or similar in law.” By consenting to plead guilty under these circumstances, defendant avoided multiple prosecutions and the probable imposition of consecutive sentences in the event of his conviction on two unrelated crimes. He also secured a promise that he would be sentenced as a second felony offender. Of course, the fact that the plea may have been beneficial to both parties does not preclude a subsequent challenge to the jurisdictional validity of the SCI. Our precedent makes clear that the parties must comply with the constitutional and statutory requirements relating to waiver of indictment; in this context, advantageous ends do not justify improper means.

On appeal in this Court, defendant challenges the validity of the waiver of indictment and SCI on three grounds. First, based on our decision in Zanghi, he argues that the inclusion of the third-degree possession of stolen property offense in the SCI was improper. Next, even if reversal is not warranted under Zanghi, he asserts that the joinder of the possession of stolen property offense with the grand larceny charge in the SCI did not meet the requirements of CPL 200.20 (2) (c). Finally, if joinder was proper under CPL 200.20 (2) (c), he maintains that CPL 195.20 is unconstitutional insofar as it purports to allow waiver of indictment and prosecution by SCI for “joined offenses” that were not previously charged in a felony complaint. We conclude that our decision in Zanghi does not compel a reversal but we agree that joinder of the criminal possession offense was impermissible under CPL 200.20 (2) (c). We therefore dismiss the SCI on that basis, making it unnecessary for us to reach defendant’s constitutional challenge to the CPL 195.20 joinder provision.

Defendant’s Zanghi Argument

Relying on Zanghi, defendant contends that, regardless of whether the two charges were properly joined under CPL 195.20 and 200.20 (2) (c), the possession of stolen property charge could not be included in the waiver of indictment and SCI because it is a class D felony—a higher grade crime than the class E grand larceny charge in the superior court felony complaint, or the class E possession of stolen property offense, one of the charges for which he was held for grand jury action. In Zanghi, defendant was charged in a felony complaint with criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the third degree. He later waived indictment and consented to be prosecuted on an SCI charging him with criminal possession of stolen property in the third degree, a charge to which he pleaded guilty. The waiver of indictment and SCI were deemed invalid in Zanghi because CPL 195.20 requires that the SCI charge an offense for which defendant was held for action of the grand jury. This means that the SCI must either charge defendant with the same crime as the felony complaint or a lesser included offense of that crime (see Menchetti, supra). The Zanghi SCI did not charge defendant with either of the offenses that had been included in the felony complaint, nor was the SCI charge a lesser included offense of either of the crimes in the felony complaint. To the contrary, the third-degree stolen property charge was of a higher grade than the fourth-degree stolen property offense included in the felony complaint.

It is clear from our precedent that “[t]he waiver procedure is triggered by the defendant being held for Grand Jury action on charges contained in a felony complaint . . . and it is in reference to those charges that its availability must be measured” (D’Amico, 76 NY2d at 879; Trueluck, 88 NY2d at 551, quoting D’Amico). In Zanghi, no triggering offense derived from the felony complaint appeared in the SCI. The People in that case tried to overcome this fundamental deficiency by suggesting that the charge in the SCI would have been joinable with either of the offenses in the felony complaint. But we rejected that contention, noting that “CPL 195.20 makes clear that where ‘joinable’ offenses are included, the information must, at a minimum, also include at least one offense that was contained in the felony complaint” (79 NY2d at 818). Since that minimum criterion was not met in Zanghi, vacatur of the guilty plea and dismissal of the SCI was required.

We are presented with a different scenario in this case. The exact offense that was charged in the superior court felony complaint—grand larceny in the fourth degree—was included in the waiver of indictment and charged in the SCI. Thus, the triggering offense omitted from the SCI in Zanghi was present here. It is true that the SCI also contained another charge arising from a separate incident—criminal possession of stolen property in the third degree—and this is an offense of higher grade or degree than the grand larceny offense. But this, standing alone, does not establish the invalidity of the waiver of indictment and SCI under Zanghi. We did not discuss in that case what types of offenses would have been joinable had a proper triggering offense been set forth in the SCI. To be sure, a Zanghi violation would have occurred here if the People had attempted to rely on the local court felony complaint charging defendant with fourth-degree criminal possession of stolen property to support the waiver of indictment relating to the third-degree version of that offense. Instead, the People’s rationale was that the third-degree stolen property offense was joinable with the grand larceny offense, the triggering offense included in both the felony complaint and SCI. Because reversal is not warranted based on the analysis in Zanghi, we must proceed to defendant’s next argument—that the possession of stolen property offense was not properly joined with the grand larceny charge under CPL 200.20 (2) (c).

Joinder under CPL 200.20 (2) (c)

CPL 195.20 states that the offenses for which indictment may be waived “include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to [CPL] 200.20 and 200.40.” CPL 200.15, the statute defining a superior court information, contains the same language, with the added limitation that an information may not include a charge not listed in defendant’s written waiver of indictment. An information is therefore governed by the same joinder rules as an indictment, in keeping with the legislative directive that “[a] superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations” (CPL 200.15). In fact, the term “indictment” encompasses superior court informations and they are treated identically everywhere in the CPL except in article 190 where the operations of the grand juiy are addressed (see CPL 200.10).

CPL 200.20 and 200.40 are the general joinder provisions that determine, in all contexts, whether offenses are properly included in the same indictment or, if there are multiple indictments, whether they may be consolidated for a single trial. Joinder of charges involving a single defendant is addressed in CPL 200.20 (2). Paragraph (a) of that subdivision authorizes joinder of multiple charges if they are based on the same criminal transaction. Paragraph (b) permits joinder of charges arising from different criminal transactions if proof of the first offense would be material and admissible as evidence in chief in the trial of the second offense. In this case, the People relied on paragraph (c) of the subdivision which authorizes joinder when, “[e]ven though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]). This is the broadest of the three categories and, for this reason, where counts are joined under CPL 200.20 (2) (c), the trial court has the discretion to grant an application for severance if it determines that the offenses should be tried separately to avoid undue prejudice to the defense (CPL 200.20 [3]; see e.g. People v Shapiro, 50 NY2d 747 [1980]).

Of course, no severance application was made in this case since defendant agreed to the joinder of the two offenses in the written waiver of indictment and SCI, and he then pleaded guilty. The issue here is whether the criminal possession of stolen property count that was not charged in the superior court felony complaint was “the same or similar in law” to the grand larceny offense so that its inclusion in the SCI on a joinder theory complied with the requirements of CPL 195.20. CPL 200.20 (2) (c) is typically relied on when a person is alleged to have violated the same Penal Law provision on two or more occasions (see e.g. People v Jenkins, 50 NY2d 981 [1980] [two separate robberies were properly joined in a single indictment]) or has been charged with comparable criminal conduct in discrete incidents, such as multiple sexual assaults (see Shapiro, supra [sexual assault counts were properly joined but defendant’s application for discretionary severance should have been granted because defendant would be unduly prejudiced by a joint trial of the charges]; People v Hunt, 39 AD3d 961 [3d Dept 2007], lv denied 9 NY3d 845 [2007] [sexual assault counts were properly joined and court did not abuse its discretion in denying severance application]; People v Clark, 24 AD3d 1225 [4th Dept 2005], lv denied 6 NY3d 832 [2006] [rape and sodomy charges were properly joined]). Offenses will not be deemed sufficiently similar to support joinder under CPL 200.20 (2) (c) if the offenses do not share any elements and the criminal conduct at the heart of each crime is not comparable (see e.g. People v Dabbs, 192 AD2d 932 [3d Dept 1993], lv denied 82 NY2d 707 [1993] [kidnapping and coercion charges were not sufficiently similar to support joinder]).

A comparison of the two charges that were joined in this case reveals little, if any, commonality. The stolen property offense stemmed from the police discovering defendant in possession of a car that had previously been reported stolen.

“A person is guilty of criminal possession of stolen property in the third degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars” (Penal Law § 165.50).

The grand larceny charge arose from an incident in which defendant allegedly obtained a bank card by false pretenses and then withdrew funds from the victim’s account without authorization. “A person is guilty of grand larceny in the fourth degree when he steals property and when . . . [t]he value of the property exceeds one thousand dollars” (Penal Law § 155.30 [1]). Viewed in the broadest sense, both offenses involve misappropriated property—but that is where any similarity ends. The crimes do not have comparable elements and the essential nature of the criminal conduct is quite distinct, as is evident from the underlying allegations. We therefore conclude that the third degree criminal possession of stolen property charge was not sufficiently similar in law to be properly included in the waiver of indictment and SCI on the theory that it was joinable with the grand larceny offense. As we have previously determined, the improper inclusion of an offense in a waiver of indictment and SCI is a jurisdictional defect that, when raised on direct appeal, requires reversal of the conviction and dismissal of the SCI.

Defendant’s Constitutional Argument Finally, defendant claims that, insofar as CPL 195.20 allows waiver of indictment and prosecution by SCI of offenses for which defendant was not held for action by the grand jury (i.e., offenses never charged in a felony complaint) on the rationale that they are joinable with a charge that was the subject of a felony complaint, the statute is inconsistent with New York Constitution, article I, § 6 and is therefore unconstitutional. At the very least, defendant suggests that the Constitution compels that CPL 195.20 be interpreted to preclude joinder of offenses that are higher in grade or degree than the triggering offense for which defendant was held for action of the grand jury. We recognized in Zanghi that the constitutionality of the joinder provision was an open question but we did not reach the issue in that case because none of the offenses in the prior felony complaint had been included in the SCI, a statutory violation that rendered the accusatory instrument jurisdictionally deficient (see 79 NY2d at 818). Here, where reversal is also warranted on a statutory basis, albeit on a different rationale, we follow the same course and do not address defendant’s constitutional arguments.

Accordingly, the order of the Appellate Division should be reversed, the guilty plea vacated, the superior court information dismissed and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order reversed, defendant’s guilty plea vacated, superior court information dismissed and case remitted to Supreme Court, Erie County, for further proceedings in accordance with the opinion herein.

      . As this Court noted in People v Boston (75 NY2d 585, 588 [1990]), CPL 195.10 is in some respects more restrictive than article I, § 6. For example, the statute contains a temporal limitation on waiver of indictment—authorizing waiver “at any time prior to the filing of an indictment by the grand jury” (CPL 195.10 [2] [b])—a limitation that does not appear in the Constitution.

      . Although defendant did not raise any of these arguments in Supreme Court—to the contrary,- he waived indictment both orally and in writing and expressly agreed to be prosecuted under this SCI—the People do not dispute that he can pursue these claims on direct appeal because this Court has held that the improper inclusion of an offense in a waiver of indictment and SCI is a jurisdictional deficiency that is not subject to the preservation rule and may not be waived (see Boston, 75 NY2d at 589 n; Zanghi, 79 NY2d at 817; see generally People v Cuadrado, 9 NY3d 362 [2007] [a defendant must raise this type of claim on direct appeal and a failure to do so will preclude a CPL 440.10 collateral attack on the conviction]).

      . Read literally, CPL 195.20 does not require that offenses joined with the triggering offense be of the same or lesser degree. Beyond the prohibition on waiver of indictment of certain class A felonies, which would preclude their inclusion under a joinder theory, the only restriction on joinder that appears in CPL 195.20 is that additional offenses included in the waiver of indictment and SCI must be joinable with the triggering offense under CPL 200.20 or 200.40. Those statutes also do not bar joinder of offenses based on their grade or degree.