People v. Green

195 A.D.3d 754

145 N.Y.S.3d 407 (Mem)

PEOPLE of State of New York, respondent,

v.Donnell GREEN, appellant.

2018-13937

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

Argued—May 19, 2021

June 9, 2021

Janet E. Sabel, New York, N.Y. (Simon Greenberg of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Danny Chun, J.), dated October 17, 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 sex trafficking, in full satisfaction of a multi-count indictment. He was sentenced to an indeterminate term of imprisonment of 3²/₃ to 11 years. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the defendant was designated a level three sex offender based on the assessment of 135 points on the risk assessment instrument. On appeal, the defendant challenges the assessment of points under risk factors 2 and 4, and the Supreme Court's denial of his application for a downward departure from the presumptive risk level.

As a threshold matter, the Supreme Court failed, in its assessment of points, to comply with Correction Law § 168–n(3), "[which] requires a court making a risk level determination ... to ‘render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based’ " ( People v. Porciello , 193 A.D.3d 993, 830, 142 N.Y.S.3d 829 [2d Dept.], quoting Correction Law § 168–n[3] ). "Nevertheless, remittal is not necessary because the record is sufficient for this Court to make its own findings of fact and conclusions of law" ( 193 A.D.3d 993, 830, 142 N.Y.S.3d 829).

Here, the defendant's contentions that he was improperly assessed points under risk factors 2 and 4 are unpreserved for appellate review, since he did not oppose the People's request for the assessment of those points at the SORA hearing (see People v. Hannah, 170 A.D.3d 1053, 1054, 94 N.Y.S.3d 444 ; People v. Rosales, 133 A.D.3d 733, 19 N.Y.S.3d 176 ). In any event, those contentions are without merit. The Supreme Court properly assessed points under risk factors 2 and 4, as the People established by clear and convincing evidence, in the form of the case summary prepared by the Board of Examiners of Sex Offenders, that the defendant had engaged in sexual intercourse with at least one of the victims on more than one occasion (see People v. Lopez, 192 A.D.3d 1050, 141 N.Y.S.3d 314 ; People v. Guallpa–Lema, 188 A.D.3d 1108, 132 N.Y.S.3d 648 ). Moreover, the defendant never refuted the statements contained in the case summary and, as such, they provided an evidentiary basis for the assessment of such points (see People v. Diaz, 34 N.Y.3d 1179, 123 N.Y.S.3d 64, 145 N.E.3d 947 ; People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). The defendant's contention that he was deprived of the effective assistance of counsel at the SORA hearing because his attorney failed to challenge the assessment of points under risk factors 2 and 4 is without merit. The defendant's argument is wholly conclusory as he fails to demonstrate the absence of a strategic or other legitimate explanation for counsel's failure to challenge the assessment of points under these risk factors (see People v. Carman, 194 A.D.3d 760, ––– N.Y.S.3d ––––, 2021 N.Y. Slip Op. 02834 [2d Dept.] ). Moreover, counsel is not ineffective for failing to advance an argument that had little or no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Moore, 66 A.D.3d 707, 711, 886 N.Y.S.2d 468, affd 15 N.Y.3d 811, 908 N.Y.S.2d 146, 934 N.E.2d 879 ).

The Supreme Court also properly denied the defendant's application for a downward departure from the presumptive risk level three to a risk level two. " ‘An offender seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise taken into account by the [SORA Guidelines], and (2) establishing the facts in support of its existence by a preponderance of the evidence’ " ( People v. Berdejo, 192 A.D.3d 923, 924, 140 N.Y.S.3d 733, quoting People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483 ; see SORA:...