Opinion
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.
MEMORANDUM AND ORDER
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, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021] ; see People v. Morancis , 201 A.D.3d 751, 751, 156 N.Y.S.3d 890 [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, 615 N.Y.S.2d 662, 639 N.E.2d 19 [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, 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] ).
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, 37 N.Y.S.3d 805 [4th Dept. 2016] ; People v. Filkins , 107 A.D.3d 1069, 1069, 968 N.Y.S.2d 621 [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, 147 N.Y.S.3d 924 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5471117 [2021] ; People v. Allport , 145 A.D.3d 1545, 1546, 44 N.Y.S.3d 289 [4th Dept. 2016] ; see also People v. Mangione , 169 A.D.3d 1370, 1371, 91 N.Y.S.3d 650 [4th Dept. 2019], lv denied 33 N.Y.3d 904, 2019 WL 2049483 [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, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see Mangione , 169 A.D.3d at 1371, 91 N.Y.S.3d 650 ). Here, there was nothing in the case summary that would support such a request (see Kingdollar , 196 A.D.3d at 1147-1148, 147 N.Y.S.3d 924 ; People v. Greenfield , 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5149744 [2015] ; People v. Reid , 59 A.D.3d 158, 159, 872 N.Y.S.2d 452 [1st Dept. 2009], lv denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925 [2009] ). We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the order.