Opinion
06-14-2024
The PEOPLE of the State of New York, Respondent, v. Michael A. BALENTINE, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Wayne County Court (Daniel G. Barrett, J.), entered December 22, 2022. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, DELCONTE, AND HANNAH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Defendant was presumptively a level two risk based on the risk assessment instrument, but County Court determined that he is a level three risk based on the presumptive override for a prior felony sex crime conviction. We affirm.
Defendant failed to preserve for our review his contentions that the court violated his due process rights by accepting his letter waiving his right to appear at the SORA hearing (see People v. Poleun, 119 A.D.3d 1378, 1378-1379, 988 N.Y.S.2d 827 [4th Dept. 2014], affd 26 N.Y.3d 973, 18 N.Y.S.3d 586, 40 N.E.3d 563 [2015]; People v. Turner, 188 A.D.3d 1746, 1746, 132 N.Y.S.3d 908 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218471 [2021]), and by allegedly failing to provide his counsel with certain documents within the statutorily prescribed time period prior to the hearing (see Correction Law § 168-n [3]; People v. Montanez, 88 A.D.3d 1278, 1279, 930 N.Y.S.2d 380 [4th Dept. 2011]).
We reject defendant’s contention that the court erred in treating the presumptive override as mandatory. Here, the court noted in its written decision that defendant was a presumptive level three risk based on the override, and also noted that a court "may depart from [the presumptive risk level] if special circumstances warrant." The court further considered defendant’s request for a downward departure and determined that such a departure was not warranted. Contrary to defendant’s contention, the court applied the correct standard (see People v. Pace, 121 A.D.3d 1315, 1316, 995 N.Y.S.2d 296 [3d Dept. 2014], lv denied 24 N.Y.3d 914, 4 N.Y.S.3d 600, 28 N.E.3d 36, 2015 WL 588844 [2015]; cf. People v. Janes, 172 A.D.3d 1786, 1787-1788, 99 N.Y.S.3d 510 [3d Dept. 2019]; see generally People v. Edmonds, 133 A.D.3d 1332, 1332-1333, 20 N.Y.S.3d 802 [4th Dept. 2015], lv denied 26 N.Y.3d 918, 2016 WL 634947 [2016]). Defendant’s contention that his prior out-of-state conviction did not qualify as a prior sex felony conviction for purposes of applying the override is unpreserved for our review (see People v. Johnson, 32 Misc.3d 138[A], 2011 N.Y. Slip Op. 51548[U], *1, 2011 WL 3594007 [App. Term, 2d Dept., 9th & 10th Jud. Dists 2011]).
Finally, we reject defendant’s contention that he was denied effective assistance of counsel based on his counsel’s performance at the SORA hearing. Although "[a] sex offender facing risk level classification under SORA has a right to … effective assistance of counsel" (People v. Root, 216 A.D.3d 1435, 1436, 188 N.Y.S.3d 836 [4th Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153329 [2023] [internal quotation marks omitted]; see People v. Stack, 195 A.D.3d 1559, 1560, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021]), we conclude that, "viewing the evidence, the law and the circumstances of this case in totality and as of the time of [the] representation, defendant received effective assistance of counsel" (People v. Russell, 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271 [4th Dept. 2014]; see People v. Hackett, 198 A.D.3d 1323, 1324, 152 N.Y.S.3d 385 [4th Dept. 2021], lv denied 37 N.Y.3d 919, 2022 WL 454270 [2022]; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).