Back when Padilla v. Kentucky was decided by the United States Supreme Court, the defense bar was quite excited not only by the relief it afforded criminal defendants, but also by the exciting possibility that the Court might be willing to take an honest look at the fictional distinction between direct and collateral consequences of a plea.

Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.

Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.

While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.

Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.

But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on: Continue reading →