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DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his conviction by guilty plea was properly granted. Defendant demonstrated he was not informed of the possibility he would be subject to the Sex Offender Management and Treatment Act (SOMTA) which could result in further confinement pursuant to the Mental Hygiene Law upon the completion of his sentence:

… [T]he defendant, through evidence presented at the hearing, including his testimony, made the factual showing necessary to demonstrate that his plea of guilty was not knowing and voluntary. When the defendant pleaded guilty, he had already been adjudicated a level three predicate sex offender pursuant to the Sex Offender Registration Act … based on a prior conviction. In addition, … the defendant here was made the subject of a SOMTA proceeding. The defendant testified at the hearing that he would not have taken the plea bargain had he known of SOMTA. Under the circumstances of this case, the defendant showed that “the prospect of SOMTA confinement was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain” … . People v Balcerak, 2018 NY Slip Op 03138, Second Dept 5-2-18

​CRIMINAL LAW (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/MENTAL HYGIENE LAW (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/SEX OFFENDER MANAGEMENT AND TREATMENT (SOMTA) (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))

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