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440.10 Appeals for Sex Offenders that were not advised of Civil Commitment under Article 10 of the Mental Health and Hygiene Law

Appeals (440.10) for Sex Offenders that were Civilly Committed without Being Advised by their Attorneys of That Possibility

Under CPL 440.10, a defendant can ask the trial court that accepted the guilty plea to vacate the conviction if the defendant did not receive the effective assistance of counsel in some way that was not apparent from the trial record. Typical claims of this sort tend to focus on attorney conflicts of interest, failure to advise clients on the immigration consequences of their pleas, failure to interview witnesses or investigate leads, or failing to communicate plea bargain offers.

Article 10 of the New York Mental Health and Hygiene Law gives the state the power to seek the civil commitment of certain convicted sex offenders following their release from prison. In short, a sex offender can serve his sentence for his sex crime but still be kept in custody against his will if it is proven, by a preponderance of the evidence, that he has a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

An interesting question arises: what if a convicted sex offender accepted a plea bargain without being advised of the possibility that they would actually be civilly committed and thereby forced to spend a significantly longer time in custody than he had expected under the terms of his plea deal? One might argue that the attorney’s failure to advise his client of this potential consequence constituted ineffective assistance of counsel worthy of the vacatur of the plea pursuant to CPL Section 440.10. The argument suggested here is potentially analogous to the vein of cases under Padilla, which gave many convicted defendants the right to claim that they did not receive the effective assistance of counsel because they, too, were not properly advised of the “civil consequence” of deportation stemming from their guilty pleas. One of the difficulties of this argument, on the other hand, is that only approximately 7% of convicted felony sex offenders ultimately become civilly committed, whereas immigration consequences for certain criminal convictions are more certain for non-citizens.

The attorneys at The Law Office of Matthew Galluzzo are experienced appellate practitioners with a background in prosecuting and defending sex crimes. They have been successful in overturning convictions via CPL 440.10 in a variety of contexts, resulting in much more favorable outcomes for their clients. If you or a loved one are being subjected to an upcoming sex offender civil commitment proceeding that you did not anticipate, you should strongly consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo to determine whether you might be able to pursue such an appeal via CPL 440.10.

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