PEOPLE v. NICHOLSON (2024)

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]).