People v. Carman

194 A.D.3d 760

147 N.Y.S.3d 119

PEOPLE of State of New York, respondent,

v.Peter CARMAN, appellant.

2018-10126

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 19, 2021

May 5, 2021

Laurette D. Mulry, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant, and appellant pro se.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Khan, J.), dated July 26, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of possessing a sexual performance by a child less than 16 years of age under Penal Law § 263.16, while on probation for another offense, and was sentenced to a definite term of one year of imprisonment.

This appeal arises from a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). The Board of Examiners of Sex Offenders (hereinafter the Board), in its risk assessment instrument (hereinafter RAI), assessed a total of 60 points against the defendant, resulting in a presumptive level one classification (see People v. Curry, 158 A.D.3d 52, 54, 68 N.Y.S.3d 483 ). The People submitted their own RAI assessing additional points, resulting in a level three classification. At the SORA hearing, the People requested that in addition to points assessed by the Board, 30 additional points should be assessed under risk factor 3 (number of victims: three or more), 20 additional points should be assessed under risk factor 7 (relationship with victim: stranger), and 10 additional points should be assessed under risk factor 12 (acceptance of responsibility). Those 120 points, if assessed, placed the defendant in the category of a presumptive level three sex offender. Defense counsel opposed the assessment of additional points, arguing that under People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701, the court had discretion to assess the points, but was not required to do so. As to risk factor 12, the defendant, after having pleaded guilty, told the Department of Probation during its presentence investigation that the child pornography had been accidently downloaded into his phone and was found without him knowing how it got there. In a letter the defendant had written to the Board, he stated that he had stumbled upon the child pornography but did not look at it. The defendant's counsel argued that the defendant had taken responsibility for his actions.

The County Court granted the People's request, and in addition to the 60 points set forth in the Board's RAI, assessed 30 points under risk factor 3 and 20 points under risk factor 7, for a total of 110 points, and designated the defendant a level three sex offender. The court did not assess any points under risk factor 12, finding that the assessment of 10 points under that factor was academic, as, with or without the assessment of those points, the defendant would be designated a level three sex offender. The court also stated that it did not consider a downward departure from the presumptive risk level, as no request had been made for that relief.

Contrary to the defendant's contentions, the County Court properly assessed points under risk factors 3 and 7. As to risk factor 3, the People established by clear and convincing evidence that the child pornography possessed by the defendant depicted the images of more than three child victims, as there were 67 pornographic images of more than three different young children on his cell phone. As to risk factor 7, the People established by clear and convincing evidence that the children in the images were strangers to the defendant (see People v. Gillotti, 23 N.Y.3d at 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Smith, 187 A.D.3d 1228, 131 N.Y.S.3d 572 ; People v. Waldman, 178 A.D.3d 1107, 112 N.Y.S.3d 554 ; People v. Rivas, 173 A.D.3d 786, 786–787, 99 N.Y.S.3d 678 ; People v. Reuter, 140 A.D.3d 1143, 33 N.Y.S.3d 757 ; People v. Morel–Baca, 127 A.D.3d 833, 4 N.Y.S.3d 893 ).

In his pro se supplemental brief, the defendant challenges the County Court's assessment of 10 points under risk factor 12. However, as noted above, the court did not actually assess 10 points for that factor.

In his pro se supplemental brief, the defendant also challenges the County Court's assessment of 10 points under risk factor 13 (conduct while confined). However, the court's assessment of 10 points under that risk factor was proper based upon the defendant's commission of six Tier II and one Tier III disciplinary violations while in jail (see People v. Collins, 188 A.D.3d 1107, 1107–1108, 132 N.Y.S.3d 697 ; People v. Holmes, 166 A.D.3d 821, 85 N.Y.S.3d 792 ; People v. Lima–Sanchez, 162 A.D.3d 698, 79 N.Y.S.3d 52 ; People v. Williams, 100 A.D.3d 610, 953 N.Y.S.2d 298 ).

The defendant further argues in his pro se supplemental brief that he was deprived of the effective assistance of counsel. Specifically, the defendant contends that his attorney did not permit him to speak to the court, failed to advise him prior to the SORA hearing that the People intended to argue for the assessment of points in addition to those assessed by the Board, and failed to preserve an objection about the timeliness of the People's intention to deviate from the Board's RAI. Nowhere, however, does the defendant specifically argue that counsel was ineffective for failing to request a downward departure from his presumptive risk level assessment, or that counsel was ineffective for failing to adequately argue against the assessment of points under any specific risk factor. As a result, the question of whether defense counsel was ineffective at the SORA hearing for the reasons now raised by our dissenting colleague is not properly before our Court (see Misicki v. Caradonna, 12 N.Y.3d 511, 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Kaufman v. Kaufman, 189 A.D.3d 31, 133 N.Y.S.3d 54 ; Matter of Cassini, 182 A.D.3d 13, 42, 120 N.Y.S.3d 103 ; Levin v. State of New York, 32 A.D.3d 501, 503, 820 N.Y.S.2d 626 ; Tammaro v. County of Suffolk, 224 A.D.2d 406, 407, 638 N.Y.S.2d 121 ).

As to the ineffectiveness issues actually raised by the defendant in his pro se supplemental brief, he was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

Assuming arguendo that in hindsight, the defendant's counsel, instead of simply opposing the People's request for an upward departure from the Board's assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People's RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel (see People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112 ). The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel's failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Further, depictions on the defendant's phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given "the number and nature of the images possessed by the defendant" ( People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364 ).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, we agree with the County Court's determination designating the defendant a level three sex offender pursuant to Correction Law article 6–C.

DILLON, J.P., LASALLE and CONNOLLY, JJ., concur.

BARROS, J., dissents and votes to reverse the order, on the law, and remit the matter to the County Court, Suffolk County, for a new hearing and determination, with the following memorandum:

The defendant established that he was deprived of the effective assistance of counsel at the hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA) based upon his assigned counsel's misunderstanding of People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701, the seminal case governing SORA proceedings against child pornography offenders, and his concomitant failure to request a downward departure from the level three sex offender designation sought by the People (see People v. Collins, 156 A.D.3d 830, 67 N.Y.S.3d 248 ; People v. Willingham, 101 A.D.3d 979, 956 N.Y.S.2d 165 ; cf. People v. Bowles, 89 A.D.3d 171, 179, 932 N.Y.S.2d 112 ).

On October 29, 2014, the defendant was convicted, upon his plea of guilty, of possessing a sexual performance by a child less than 16 years of age ( Penal Law § 263.16 ). The conviction arose out of the defendant's possession of a cell phone containing 67 pornographic images of young children. The defendant was sentenced to a one-year definite term of imprisonment.

Upon the defendant's release, the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a risk assessment instrument (hereinafter RAI) dated May 9, 2018, in which it assessed 60 points, and designated the defendant as a presumptive level one sex offender, reflecting its determination that the defendant was a low risk to reoffend. Notably, in its Case Summary, the Board stated that there were no factors in its Scoring for Child...