Opinion
No. 737 KA 21-01031
10-07-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RYAN J. CLEMENT, DEFENDANT-APPELLANT.
CRAIG M. CORDES, SYRACUSE, FOR DEFENDANT-APPELLANT. LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
CRAIG M. CORDES, SYRACUSE, FOR DEFENDANT-APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.
Appeal from an order of the Lewis County Court (John H. Crandall, A.J.), entered November 23, 2020. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal 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 contends that he received ineffective assistance of counsel because defense counsel did not contest the assessment of points by the Board of Examiners of Sex Offenders (Board) or request a downward departure." '[A] sex offender facing risk level classification under SORA has a right to the effective assistance of counsel'" (People v Stack, 195 A.D.3d 1559, 1560 [4th Dept 2021], lv denied 37 N.Y.3d 915 [2021]; see People v Morancis, 201 A.D.3d 751, 751 [2d Dept 2022]). "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation" (People v Flores, 84 N.Y.2d 184, 187 [1994]). Here, 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 [4th Dept 2014]; see People v Hackett, 198 A.D.3d 1323, 1324 [4th Dept 2021], lv denied 37 N.Y.3d 919 [2022]; see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]).
Defense counsel successfully opposed additional points sought by the People in their risk assessment instrument. Defendant contends that defense counsel should have opposed the Board's assessment of 20 points under risk factor 4, for a continuing course of sexual misconduct. Even assuming, arguendo, that the People did not show by clear and convincing evidence that at least 24 hours separated the two acts of sexual contact with the victim (see People v Farrell, 142 A.D.3d 1299, 1299-1300 [4th Dept 2016]; People v Filkins, 107 A.D.3d 1069, 1069 [3d Dept 2013]), we note that defendant remained a level three risk even without those points, and there was no colorable basis to contest the assessment of any other points (see People v Kingdollar, 196 A.D.3d 1146, 1147 [4th Dept 2021], lv denied 37 N.Y.3d 915 [2021]; People v Allport, 145 A.D.3d 1545, 1546 [4th Dept 2016]; see also People v Mangione, 169 A.D.3d 1370, 1371 [4th Dept 2019], lv denied 33 N.Y.3d 904 [2019]). With respect to defense counsel's failure to request a downward departure, 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 Stultz, 2 N.Y.3d 277, 287 [2004], rearg denied 3 N.Y.3d 702 [2004]; see Mangione, 169 A.D.3d at 1371). Here, there was nothing in the case summary that would support such a request (see Kingdollar, 196 A.D.3d at 1147-1148; People v Greenfield, 126 A.D.3d 1488, 1489 [4th Dept 2015], lv denied 26 N.Y.3d 903 [2015]; People v Reid, 59 A.D.3d 158, 159 [1st Dept 2009], lv denied 12 N.Y.3d 708 [2009]).
We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the order.