Legal Question in Criminal Law in New York

Plea Agreement

My son was convicted of a crime in march of 2005. He took a plea agreement of 2 months house arrest and 5 yrs probation. The judge stated he would consider a certificate of early release in 2 1/2 yrs if he did well on probation. When we got to his first probation appointment all of his paper work stated he had 10 yrs probation. When I talked to his lawyer, he told me that he was not aware that the charge (statutory rape) carried a mandatory 10yrs probation and it could not be pleaded.But the judge accepted the plea. He was convicted on March 1,2005 and we did not find this out until April 7,2005. My lawyer never notified us of this. His only answer was that he was sorry if he mislead me.My son never received any paper work related to his conviction until we went to his probation appointment. The paperwork we received was dated February 22,2005.I also called my lawyer's clerk and she told me that all of her paperwork stated 5 years probation. Can a conviction be changed after the fact if the lawyer and/or the judge are not aware of a statute? Would the defendant have to be notified of this so that he could make the decision whether or not to proceed with the case?

Asked on 10/12/05, 5:48 pm

1 Answer from Attorneys

Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: Plea Agreement

The real question here is this - had you and your son known that probation was in fact going to be 10 years versus 5, would he have still taken the plea agreement, or would he have taken the case to trial? If your son were to attempt to withdraw his guilty plea at this point, there is no guarantee that the DA and Judge will do anything different but offer him the same deal with the 10 year probationary sentence, unless he wants to take the case to trial.

The fact that both your lawyer and the Judge were "ignorant of the law," does not change the law... but, it does impact on whether or not your son's plea of guilty was done "knowingly" since he was mislead in a material way about the length of his probation. Did he also discuss the sex offender registration act with your son? That is another problem that I have been seeing.

If you would like to discuss this in more detail, I would be happy to do so and review whatever paperwork you have. I must advise you however, that this is not a free consultation and that our Firm charges $300.00 for this type of meeting.

Please email me directly at [email protected] if you want to discuss this further.

Thank you,

Don Rehkopf

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Answered on 10/12/05, 6:04 pm

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