Because I believe that civil confinement under the Sex Offender Management and Treatment Act (SOMTA) is so grave a deprivation of liberty that a plea should not be considered knowing and voluntary unless the defendant is aware of it, I respectfully dissent.
Once again we are confronted with deciding whether a consequence of a plea should be considered direct or collateral. In People v Gravino (14 NY3d 546 [2010]), we held that Sex Offender Registration Act (SORA) registration is a collateral consequence of a sex offense conviction. It is well settled that a direct consequence is one with a “definite, immediate and largely automatic effect on a defendant’s punishment” (Gravino, 14 NY3d at 554, quoting People v Ford, 86 NY2d 397, 403 [1995] [brackets omitted]). We determined in Gravino that SORA registration is collateral because it is nonpenal and its specific consequences will vary by defendant (see id. at 556-557). The same is true for SOMTA eligibility.
I dissented in Gravino on the ground that because imposition of SORA registration is mandatory and known at the time of the plea, it ought to be considered a direct consequence of that plea (see id. at 561 [Ciparick, J., dissenting]). This rationale likewise applies to defendant’s automatic eligibility for SOMTA review. All defendants convicted of sexual abuse in the first degree and sentenced to a prison term are “detained sex offenders” under SOMTA (Mental Hygiene Law § 10.03 [g]). The statute requires that the Attorney General and Commissioner of Mental Health receive notice of a detained sex offender’s scheduled release date and provides the authority to take further action towards civil management, if warranted (Mental Hygiene Law § 10.05 [b], [d], [e], [g]; § 10.06 [a]). Nevertheless, I acknowledge that following our holding in Gravino, SOMTA review must be considered a collateral consequence.
Under most circumstances, this would end our analysis, since a court’s failure to warn a defendant of collateral consequences generally does not merit withdrawal of a plea (see People v Catu, *2094 NY3d 242, 244 [2005]). Here, however, we are confronted with a consequence that, though technically nonpenal and not applied to every defendant, may result in a period of confinement lengthier than a defendant’s prison sentence (see Mental Hygiene Law § 10.07 [f]; § 10.09 [a], [h]; § 10.10 [a]). In this sense, as the Appellate Division dissent noted, “it constitutes a potentially greater deprivation of liberty than the criminal sentence imposed,” and is closer to a direct consequence than those traditionally considered collateral (People v Harnett, 72 AD3d 232, 236 [3d Dept 2010]).
A trial court has a constitutional obligation to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” (Ford, 86 NY2d at 402-403). “[D]ue process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (id. at 403 [internal quotation marks omitted]). While a trial court generally has no obligation to inform a defendant of collateral consequences, regardless of their severity (see Gravino, 14 NY3d at 556-557), I believe a defendant cannot be said to knowingly and voluntarily forgo his right to trial if he does not know the full extent of confinement that might result from his conviction. “Freedom from bodily restraint [is] at the core of the liberty protected by the Due Process Clause” (Foucha v Louisiana, 504 US 71, 80 [1992]). Moreover, “in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long” (Gravino, 14 NY3d at 559).
Although SOMTA confinement follows a separate administrative evaluation, probable cause hearing, and jury trial, it is the initial conviction that determines a defendant’s eligibility for that evaluative process.* Even the majority here “recommend[s] to trial courts that the possible effects of SOMTA be explained to anyone pleading guilty to an offense that may result in SOMTA proceedings” (majority op at 207). The dissent below and the Supreme Court of New Jersey have aptly noted that where, as here, a potential consequence of a plea is confinement well beyond the penal sentence, fundamental fairness requires the defendant’s knowledge of that consequence (see State v *210Bellamy, 178 NJ 127, 139, 835 A2d 1231, 1238 [2003]; Harnett, 72 AD3d at 237).
As the majority observes, a defendant who has pleaded guilty in ignorance of a collateral consequence may successfully move to withdraw his plea upon making an individualized showing that he would not have so pleaded had he been aware of the consequence (Gravino, 14 NY3d at 559). Treating SOMTA eligibility as a standard collateral consequence, the majority finds the record on this appeal insufficient to support defendant’s claim, since he has failed to show that any SOMTA proceeding has been or is likely to be brought against him, his ignorance of SOMTA at the time of the plea, and that it would have impacted his decision to plead guilty (majority op at 207). In my view, defendant should be given an opportunity to put before County Court in a motion to withdraw his plea or other appropriate motion the specifics which are lacking in this record.
By pleading guilty, defendant exposed himself to the possibility that he would be confined after expiration of his prison sentence, perhaps indefinitely. County Court should have confirmed defendant’s awareness of that fact before accepting his guilty plea. Thus, I would remit to County Court to allow defendant to move to withdraw his plea.
Chief Judge Lippman and Judges Graffeo, Read and Pigott concur with Judge Smith; Judge Ciparick dissents and votes to reverse in a separate opinion in which Judge Jones concurs.
Order affirmed.
The majority’s calculation that, at most, approximately six percent of sex offenders screened under SOMTA during its first three years were civilly committed is beside the point (majority op at 205); any chance that a defendant will face further confinement as a result of his plea should be made known to him at the time the plea is taken.