PEOPLE v. GRIFFITH (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum:  Defendant appeals from an order that denied his petition pursuant to Correction Law § 168–o(2) seeking a downward modification of his previously-imposed classification as a level three risk under the Sex Offender Registration Act ( [SORA] § 168 et seq.).  As a preliminary matter, we note that defendant's pro se notice of appeal states that he is appealing pursuant to CPL 450.10(1) “as it applies” to Correction Law § 168–n.  CPL 450.10(1), however, does not grant defendant the right to appeal from an order denying his petition for a downward modification of his risk level;  instead, that right is conferred by CPLR 5701 (see generally People v. Charles, 162 A.D.3d 125, 126, 137–140, 77 N.Y.S.3d 130 [2d Dept. 2018], lv denied 32 N.Y.3d 904, 2018 WL 4354724 [2018] ).  Nevertheless, we deem the appeal to have been taken pursuant to the proper statute, and we therefore reach the merits of the issues raised on appeal (see CPLR 2001).

We agree with defendant that he was denied effective assistance of counsel, and we therefore reverse the order, reinstate the petition, and remit the matter to County Court for a new hearing on the petition.  Defendant contended in the petition, among other things, that he was entitled to a downward modification of his risk level classification.  His assigned counsel, however, wrote a letter to the court indicating that the petition lacked merit, counsel would not support the petition, and he had advised defendant to withdraw the petition so that defendant would not needlessly delay his right to file a new modification petition in two years.  We conclude that defense counsel “essentially[ ] became a witness against [defendant] and took a position adverse to him,” which denied defendant effective assistance of counsel (People v. Caccavale, 305 A.D.2d 695, 695, 760 N.Y.S.2d 210 [2d Dept. 2003]; see People v. Freire, 157 A.D.3d 963, 964, 67 N.Y.S.3d 487 [2d Dept. 2018]; People v. Brown, 152 A.D.3d 1209, 1212, 59 N.Y.S.3d 234 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] ).  In addition, a defendant may commence a Correction Law § 168–o(2) proceeding no more than once annually (see People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ), thus defense counsel's advice was incorrect as well as adverse to defendant's position.

Contrary to defendant's contentions in his pro se supplemental brief, the court did not err in refusing to allow him to challenge his plea or other aspects of his underlying conviction.  It is well settled that a SORA proceeding may not be used to challenge the underlying conviction (see generally People v. Buniek, 121 A.D.3d 659, 659, 993 N.Y.S.2d 180 [2d Dept. 2014], lv denied 24 N.Y.3d 914, 2015 WL 175198 [2015]; People v. Clavette, 96 A.D.3d 1178, 1179, 946 N.Y.S.2d 310 [3d Dept. 2012], lv denied 20 N.Y.3d 851, 2012 WL 5845583 [2012]; People v. Ayala, 72 A.D.3d 1577, 1578, 898 N.Y.S.2d 912 [4th Dept. 2010], lv denied 15 N.Y.3d 816, 908 N.Y.S.2d 148, 934 N.E.2d 882 [2010] ).

In light of our determination, we do not address the remaining contentions in defendant's main brief.