People v. May

205 A.D.3d 745

165 N.Y.S.3d 726 (Mem)

PEOPLE of State of New York, respondent,

v.Antoine MAY, appellant.

2019–13199

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

Submitted—February 28, 2022

May 4, 2022

Del Atwell, East Hampton, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (Shea Scanlon Lomma and William C. Milaccio of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated September 12, 2019, 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 attempted course of sexual conduct against a child in the first degree. Following a hearing to determine the defendant's risk level under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), in an order dated September 12, 2019, the Supreme Court assessed a total of 120 points under the risk assessment instrument and designated him a level three sex offender. The defendant appeals.

The defendant failed to establish that his attorney's failure to request a downward departure rendered counsel ineffective (see People v. Patel, 192 A.D.3d 1052, 1053, 140 N.Y.S.3d 765 ; People v. Luna, 187 A.D.3d 805, 807, 130 N.Y.S.3d 323 ). " ‘[T]he SORA hearing as a whole was not rendered unduly prejudicial or unfair’ due to counsel's failure to seek a downward departure" ( People v. Patel, 192 A.D.3d at 1053, 140 N.Y.S.3d 765, quoting People v. Luna, 187 A.D.3d at 807, 130 N.Y.S.3d 323 [internal quotation marks omitted]). Moreover, the defendant could not have established by a preponderance of the evidence that a downward departure was warranted (see People v. Strong, 196 A.D.3d 707, 709, 148 N.Y.S.3d 699 ; People v. Luna, 187 A.D.3d at 807, 130 N.Y.S.3d 323 ), and therefore, even had counsel sought a downward departure, there was no "reasonable probability" of a different SORA result ( Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; see People v. Butler, 157 A.D.3d 727, 732, 69 N.Y.S.3d 66 ). Thus, the defendant failed to establish that he was deprived of the effective assistance of counsel.

The defendant's contention that his designation as a level three sex offender violated due process is unpreserved for appellate review (see CPL 470.05[2] ; see generally People v. Arnold, 35 A.D.3d 827, 827, 828 N.Y.S.2d 119 ; People v. Cureton, 299 A.D.2d 532, 532, 750 N.Y.S.2d 506 ) and, in any event, without merit (see People v. Webb, 162 A.D.3d 918, 919, 75 N.Y.S.3d 260 ).

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