Opinion
765 KA 19-01961
10-01-2021
The PEOPLE of the State of New York, Respondent, v. Patrick M. HACKETT, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, 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 failed to preserve for our review his contention that he did not validly waive his right to contest the risk designation recommended by the Board of Examiners of Sex Offenders (see People v. Akinpelu, 126 A.D.3d 1451, 1451-1452, 6 N.Y.S.3d 347 [4th Dept. 2015], lv denied 25 N.Y.3d 912, 2015 WL 3951953 [2015] ; People v. Kyle , 64 A.D.3d 1177, 1178, 881 N.Y.S.2d 759 [4th Dept. 2009], lv denied 13 N.Y.3d 709, 2009 WL 3379124 [2009] ; People v. Gliatta , 27 A.D.3d 441, 441, 810 N.Y.S.2d 342 [2d Dept. 2006] ) and, in any event, that contention lacks merit.
Defendant further contends that the court erred in assessing points under risk factor 11 of the risk assessment instrument and in failing to grant a downward departure from defendant's presumptive risk level. Those contentions are not preserved for our review (see People v. Phillips , 162 A.D.3d 1752, 1752-1753, 76 N.Y.S.3d 452 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5259924 [2018] ; People v. Puff , 151 A.D.3d 1965, 1966, 57 N.Y.S.3d 864 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782708 [2017] ), however, because at the SORA hearing defendant neither contested the points assessed under risk factor 11 nor requested a downward departure (see People v. Saraceni , 153 A.D.3d 1561, 1561, 60 N.Y.S.3d 870 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; Puff , 151 A.D.3d at 1966, 57 N.Y.S.3d 864 ).
Finally, to the extent that it is reviewable on this appeal (see People v. Eiss , 158 A.D.3d 905, 907, 70 N.Y.S.3d 604 [3d Dept. 2018], lv denied 31 N.Y.3d 907, 2018 WL 2123205 [2018] ), we reject defendant's contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this particular case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Russell , 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271 [4th Dept. 2014] ).