Opinion
486 16–02248
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Ernest LOTT, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
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 County Court erred in assessing 10 points for the recency of a prior felony conviction. We reject that contention. "Pursuant to the commentary to the risk assessment guidelines, 10 points should be assessed under that risk factor ‘if an offender has a prior felony or sex crime [conviction] within three years of the instant offense’ " ( People v. Weathersby, 61 A.D.3d 1382, 1382, 877 N.Y.S.2d 542 [4th Dept. 2009], lv denied 13 N.Y.3d 701, 2009 WL 2622096 [2009], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006] ). The three-year period is measured from the date of the prior conviction without regard to any time during which the offender was incarcerated (see People v. Dunn, 82 A.D.3d 856, 857, 918 N.Y.S.2d 358 [2d Dept. 2011], lv denied 17 N.Y.3d 704, 2011 WL 2473022 [2011] ; Weathersby, 61 A.D.3d at 1382, 877 N.Y.S.2d 542 ). A defendant is "convicted" of an offense upon "the entry of a plea of guilty" ( CPL 1.20[13] ). Here, defendant was convicted upon his plea of guilty of a felony, absconded, and, less than five months later, committed the instant designated sex offense. Thus, we conclude that the court properly assessed 10 points for the recency of the prior felony conviction because the People proved by clear and convincing evidence that the time between that conviction and the commission of the instant offense was less than three years (see Weathersby, 61 A.D.3d at 1382–1383, 877 N.Y.S.2d 542 ).
Defendant failed to preserve for our review his constitutional challenges to SORA because those challenges are raised for the first time on appeal (see People v. Frank, 37 A.D.3d 1043, 1044, 829 N.Y.S.2d 317 [4th Dept. 2007], lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007], rearg. denied 9 N.Y.3d 977, 848 N.Y.S.2d 14, 878 N.E.2d 597 [2007] ). Contrary to defendant's further contention, he was not denied effective assistance of counsel based on his attorney's failure to raise his constitutional challenges at the SORA hearing. An attorney's single alleged error in failing to raise an argument does not constitute ineffective assistance of counsel unless that error is " ‘clear-cut and completely dispositive’ ..., and not one based on a complex analysis" ( People v. Calderon, 66 A.D.3d 314, 320, 884 N.Y.S.2d 29 [1st Dept. 2009], lv denied 13 N.Y.3d 858, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009], quoting People v. Turner, 5 N.Y.3d 476, 481, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.