Opinion
260 KA 22-00413
05-05-2023
The PEOPLE of the State of New York, Respondent, v. Brandon ROOT, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, 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. ). We affirm. We reject defendant's contention that County Court erred in assessing 15 points for inflicting physical injury on the two victims. The SORA: Risk Assessment Guidelines and Commentary (2006) (Guidelines) incorporates the definition of physical injury in Penal Law § 10.00 (9), i.e., "impairment of physical condition or substantial pain" (see Guidelines at 8). "Of course ‘substantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial" ( People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). "Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and [their] pain, whether the victim sought medical treatment, and the motive of the offender" ( People v. Haynes , 104 A.D.3d 1142, 1143, 960 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ).
Here, the People submitted, inter alia, the first victim's grand jury testimony, and her medical records from after the incident, which established that defendant forcibly penetrated her vagina twice, grabbed her by the hair and head, and shook her head in an attempt to force her to perform oral sex on him. The second victim testified before the grand jury that defendant forcibly penetrated her twice vaginally and once anally. The victims’ testimony, coupled with their statements to medical personnel at the hospital, provided clear and convincing evidence that the victims each suffered substantial pain (see People v. Whiten , 187 A.D.3d 1661, 1661-1662, 132 N.Y.S.3d 503 [4th Dept. 2020] ; People v. Leach , 158 A.D.3d 1240, 1241, 70 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013055 [2018] ).
Defendant's contention that his counsel was ineffective based on a conflict of interest is unpreserved inasmuch as it is raised for the first time on appeal (see generally Matter of Mary R.F. [Angela I.] , 144 A.D.3d 1493, 1494, 41 N.Y.S.3d 341 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 628934 [2017] ). Furthermore, we reject defendant's contention that he was denied effective assistance of counsel based on his counsel's performance at the SORA hearing. " ‘[A] sex offender facing risk level classification under SORA has a right to ... effective assistance of counsel’ " ( People v. Stack , 195 A.D.3d 1559, 1560, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021] ; see People v. Morancis , 201 A.D.3d 751, 751, 156 N.Y.S.3d 890 [2d Dept. 2022] ). "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation" ( People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ). Here, we conclude that, "viewing the evidence, the law and the circumstances of this case in totality and as of the time of [the] representation, defendant received effective assistance of counsel" ( People v. Russell , 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271 [4th Dept. 2014] ; see People v. Hackett , 198 A.D.3d 1323, 1324, 152 N.Y.S.3d 385 [4th Dept. 2021], lv denied 37 N.Y.3d 919, 2022 WL 454270 [2022] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).