By Daniel Wiessner
ALBANY, N.Y., Feb 12 (Reuters) - A judge who accepted the
guilty plea of a convicted felon did not need to explain to the
defendant that his sentence would immediately follow a prior
sentence, the Court of Appeals ruled Tuesday.
In a 4-1 ruling, the court on Tuesday upheld Rafael
Belliard's 2007 convictions on cocaine and gun possession
charges. In doing so, the court found that the mandatory
consecutive sentencing of repeat felons is a collateral
consequence of pleading guilty.
State law requires judges to explain to defendants direct,
but not collateral, consequences of guilty pleas.
"A court's silence regarding collateral consequences will
not warrant vacating a plea because they are peculiar to the
individual," Judge Victoria Graffeo wrote for the court.
Belliard in 2006 was arrested after selling cocaine to a
police informant. In 2007, he pleaded guilty to two counts of
drug possession and one count of criminal possession of a weapon
and was sentenced to 12 years, the court said.
Belliard, now 32, had been convicted in 2003 of a separate
felony drug crime and was sentenced to three years in prison and
five years of parole. He was on parole when he committed the
2006 crimes, the court said.
Under Section 70.25 (2-a) of the state Penal Law, a prison
term imposed upon a repeat felony offender must run
consecutively to a previously imposed sentence that is still
In accepting the guilty plea in 2007, Acting Supreme Court
Justice Stephen Sirkin of Monroe County did not mention the
consecutive sentence requirement for repeat felons, according to
the Court of Appeals. When he sentenced Belliard, Sirkin once
again did not mention the requirement, the court said.
The Appellate Division, Fourth Department, in 2011 upheld
Belliard's conviction without explanation. The Court of Appeals
on Tuesday affirmed. Graffeo was joined by Judges Robert Smith,
Susan Read and Eugene Pigott.
As a result of Tuesday's decision, Belliard must serve the
remaining four years of parole from his 2003 conviction once he
completes his 12-year sentence.
In dissent, Chief Judge Jonathan Lippman said that
consecutive sentencing was a direct consequence of Belliard's
guilty plea, since it was mandated under the Penal Law.
"It is, in fact, no less direct than the sentence itself -
so direct that the sentencing court need not even mention it for
it to take effect, or so this court has held," Lippman said.
Belliard's attorney, David Juergens, said on Tuesday that he
agreed with Lippman. He said the issue arises frequently and
that the court had settled it in favor of prosecutors.
Monroe County Assistant District Attorney Kelly Wolford, who
handled the case, said judges are often unaware when defendants
are on parole for separate convictions, so they do not realize
when a defendant faces consecutive sentencing.
"Parole operates entirely separate from the (courts), and in
these cases it was often very confusing and difficult to get an
answer," she said.
The case is the People v. Rafael Belliard, New York State
Court of Appeals, No. 5.
For the prosecution: Monroe County Assistant District
Attorney Kelly Wolford.
For Belliard: David Juergens of the Monroe County Public
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