Opinion
05-03-2024
The PEOPLE of the State of New York, Respondent, v. Christopher NICHOLSON, Defendant-Appellant.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Judith A. Sinclair, J.), dated July 20, 2022. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, 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 classifying him as a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that he was denied effective assistance of counsel at the SORA classification hearing because his attorney failed to request a downward departure from the presumptive risk level. We reject that contention. 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 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]) and, here, 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, his attorney "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; People v. Goldbeck, 104 A.D.3d 567, 567-568, 963 N.Y.S.2d 1 [1st Dept. 2013], lv denied 21 N.Y.3d 860, 2013 WL 3197669 [2013]).