Opinion
317 KA 14-00973
03-27-2015
The PEOPLE of the State of New York, Respondent, v. Michael A. GREENFIELD, Defendant–Appellant.
Patrick T. Chamberlain, Penn Yan, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown, for Respondent.
Patrick T. Chamberlain, Penn Yan, for Defendant–Appellant.
Cindy F. Intschert, District Attorney, Watertown, for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). Contrary to defendant's contention, County Court's determination that defendant is a level two risk is based upon clear and convincing evidence (see generally § 168–n[3] ), including “reliable hearsay contained in the case summary and the presentence report” (People v. Thompson, 66 A.D.3d 1455, 1456, 885 N.Y.S.2d 828, lv. denied 13 N.Y.3d 714, 2009 WL 4845034 ; see People v. Young, 108 A.D.3d 1232, 1232, 969 N.Y.S.2d 372, lv. denied 22 N.Y.3d 853, 2013 WL 5658386, rearg. denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 ; People v. Lewis, 45 A.D.3d 1381, 1381, 845 N.Y.S.2d 585, lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 ). Defendant failed to preserve for our review his challenge to the manner in which the hearing was conducted (see People v. Tubbs, 124 A.D.3d 1094, 1095, 1 N.Y.S.3d 561 ; People v. Williamson, 73 A.D.3d 1398, 1398–1399, 901 N.Y.S.2d 761 ) and, in any event, we conclude that the requisite standards were met (see generally § 168–n[3] ).
We reject defendant's further contention that he was denied effective assistance of counsel because his attorney failed to request a downward departure from the presumptive risk level (see People v. Goldbeck, 104 A.D.3d 567, 567–568, 963 N.Y.S.2d 1, lv. denied 21 N.Y.3d 860, 2013 WL 3197669 ; 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, 908 N.E.2d 925 ). 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, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ) and, here, we conclude that there are no “mitigating factors warranting a downward departure from his risk level” (People v. Merkley, 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 ; see People v. Sells, 115 A.D.3d 1345, 1346, 982 N.Y.S.2d 677, lv. denied 23 N.Y.3d 905, 2014 WL 2580123 ; People v. Hays, 99 A.D.3d 1212, 1212–1213, 951 N.Y.S.2d 437, lv. denied 20 N.Y.3d 854, 2012 WL 6580499 ).
Finally, we conclude that, contrary to defendant's contention, the court complied with the statutory mandate that the court set forth in the order “the findings of fact and conclusions of law” on which the determination is based (Correction Law § 168–n[3] ; see People v. Carter, 35 A.D.3d 1023, 1023–1024, 825 N.Y.S.2d 830, lv. denied 8 N.Y.3d 810, 834 N.Y.S.2d 507, 866 N.E.2d 453 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.