         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
619
KA 08-00617
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY D. COLBERT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MATTHEW J. CLARK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), rendered September 6, 2007. The judgment convicted
defendant, upon his plea of guilty, of attempted rape in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of attempted rape in the first degree (Penal Law §§
110.00, 130.35 [1]), defendant contends that his guilty plea was not
knowing, voluntary, and intelligent because Supreme Court failed to
advise him of the possibility of civil confinement pursuant to the Sex
Offender Management and Treatment Act ([SOMTA] Mental Hygiene Law §
10.01 et seq.). Defendant failed to move to withdraw the plea or to
vacate the judgment of conviction on that ground and thus has failed
to preserve his contention for our review (see generally People v
Pendelton, 81 AD3d 1037, 1038; People v Ortiz, 43 AD3d 1348, lv denied
9 NY3d 1008). In any event, defendant’s contention is without merit
(see People v Harnett, 16 NY3d 200, 205-207). The possibility of
civil confinement pursuant to SOMTA is a collateral consequence of a
guilty plea, and the court therefore was not required to advise
defendant of SOMTA’s potential impact (see id. at 206). Although “a
plea made in ignorance of [the] consequences [of SOMTA] may sometimes
be proved involuntary . . . if a defendant can show that the prospect
of SOMTA confinement was realistic enough that it reasonably could
have caused him [or her], and in fact would have caused him [or her],
to reject an otherwise acceptable plea bargain” (id. at 207),
defendant failed to meet that burden. Thus, the court was not
                                 -2-                           619
                                                         KA 08-00617

required, as a matter of fundamental fairness, to advise defendant of
the potential impact of SOMTA.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
