Opinion
429 KA 19-00113
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Roger A. KINGDOLLAR, Also Known as Roger Kingdollar, Also Known as Roger A. Kingdollar, III, Also Known as Roger Atwell Kingdollar, Defendant-Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI 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 (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted promoting an obscene sexual performance by a child ( Penal Law §§ 110.00, 263.10 ). In appeal No. 2, defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ) based on his conviction in appeal No. 1. We affirm in both appeals.
With respect to appeal No. 1, defendant contends that his waiver of the right to appeal is invalid and does not encompass his challenge to County Court's refusal to grant him youthful offender status or his challenge to the severity of the sentence. Initially, contrary to defendant's contention, the Court of Appeals has rejected the assertion that waivers of the right to appeal should be invalid per se (see People v. Thomas , 34 N.Y.3d 545, 557-558, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Seaberg , 74 N.Y.2d 1, 8-9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Viehdeffer , 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude his challenge to the youthful offender determination (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ; People v. McClellan , 49 A.D.3d 1201, 1202, 856 N.Y.S.2d 350 [4th Dept. 2008] ), we conclude that the court did not abuse its discretion in declining to adjudicate defendant a youthful offender (see People v. Simpson , 182 A.D.3d 1046, 1047, 120 N.Y.S.3d 910 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 823, 151 N.E.3d 504 [2020] ; see also People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see generally People v. Minemier , 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ). Further, having reviewed the applicable factors pertinent to a youthful offender determination (see People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we decline to exercise our interest of justice jurisdiction to grant him such status (see Simpson , 182 A.D.3d at 1047, 120 N.Y.S.3d 910 ; Lewis , 128 A.D.3d at 1400-1401, 7 N.Y.S.3d 800 ; cf. Keith B.J. , 158 A.D.3d at 1161, 70 N.Y.S.3d 291 ). We also conclude that the sentence is not unduly harsh or severe.
With respect to appeal No. 2, defendant contends that he was denied effective assistance of counsel at the SORA classification proceeding. We reject that contention. Defendant's contention that his attorney should have challenged the assessment of points under risk factor 11—pertaining to his history of drug abuse—is without merit. "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. 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], quoting 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] ). Here, the record establishes that there was no colorable basis for challenging the points assessed under risk factor 11 because defendant admitted that he had used marihuana daily for years (see People v. Palmer , 20 N.Y.3d 373, 377-378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ; People v. Kowal , 175 A.D.3d 1057, 1057, 105 N.Y.S.3d 688 [4th Dept. 2019] ; People v. Merkley , 125 A.D.3d 1479, 1479, 3 N.Y.S.3d 848 [4th Dept. 2015] ).
With respect to defendant's further contention that defense counsel was ineffective in failing to seek a downward departure from defendant's presumptive risk level, we conclude that there are no " ‘mitigating factors warranting a downward departure from his risk level’ " ( Greenfield , 126 A.D.3d at 1489, 6 N.Y.S.3d 379 ; see People v. Allport , 145 A.D.3d 1545, 1546, 44 N.Y.S.3d 289 [4th Dept. 2016] ). Thus, contrary to defendant's contention, defense counsel "could have reasonably concluded that there was nothing to litigate at the hearing" ( 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] ; see Allport , 145 A.D.3d at 1546, 44 N.Y.S.3d 289 ).