PEOPLE v. WILLIAMS (2024)

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 and a sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).

Defendant contends that Supreme Court erred in denying his request for a downward departure. We reject that contention. Even assuming, arguendo, that defendant satisfied his burden with respect to the first two steps of the three-step analysis required in evaluating a request for a downward departure (see e.g. People v Burgess, 191 AD3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud, 198 AD3d 542, 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer, 166 AD3d 536, 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally People v Gillotti, 23 NY3d 841, 861 [2014]), we conclude, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two (see People v Scott, 186 AD3d 1052, 1054-1055 [4th Dept 2020], lv denied 36 NY3d 901 [2020]; see also People v Gillotti, 119 AD3d 1390, 1391 [4th Dept 2014]).

Contrary to defendant's further contention, his counsel was not ineffective for failing to request a downward departure based on defendant's age “because such a request had little or no chance of success” (People v Felder, 229 AD3d 1278, 1279 [4th Dept 2024] [internal quotation marks omitted]). Moreover, “viewing the evidence, the law and the circumstances of this case in totality and as of the time of representation,” we conclude that defendant received effective assistance of counsel (People v Russell, 115 AD3d 1236, 1236 [4th Dept 2014]).