Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Brian ALLPORT, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM: On appeal from an order classifying him as a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends that he was denied effective assistance of counsel at the SORA classification proceeding. We reject that contention. Defendant's contention that his attorney at the classification proceeding should have challenged each of the points assessed is without merit. "It is well established that ‘[a] defendant is not denied effective assistance of ... counsel merely because counsel does not make a motion or argument that has little or no chance of success' " (People v. Greenfield, 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379, lv. denied 26 N.Y.3d 903, 2015 WL 5149744 quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). Here, the record establishes that there was no colorable basis for challenging any of the points assessed. With respect to defendant's further contention that counsel was ineffective in failing to seek a downward departure from defendant's presumptive risk level, "we conclude that there are no ‘mitigating factors warranting a downward departure from his risk level’ " (id. ). thus, contrary to defendant's contentIon, "[c]ounsel could have reasonably concluded that there was nothing to litigate at the hearing" (People v. Reid, 59 A.D.3d 158, 159, 872 N.Y.S.2d 452, lv. denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925 ; see People v. Westfall, 114 A.D.3d 1264, 1264, 980 N.Y.S.2d 860 ; see also People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112, lv. denied 18 N.Y.3d 807, 2012 WL 489796 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.