THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVID CASTANEDA DEFENDANT APPELLANT (2026)

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 (SORA) (Correction Law § 168 et seq.). We affirm.

Defendant contends that he was denied effective assistance of counsel at the SORA hearing because his attorney failed to request a downward departure from the presumptive risk level. We reject that contention. “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 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Williams, 233 AD3d 1455, 1456 [4th Dept 2024], lv denied 44 NY3d 903 [2025]; People v Nicholson, 227 AD3d 1442, 1443 [4th Dept 2024], lv denied 42 NY3d 905 [2024]) and, here, we conclude that there are no “mitigating factors warranting a downward departure from his risk level” (Nicholson, 227 AD3d at 1443 [internal quotation marks omitted]; see People v Kingdollar, 196 AD3d 1146, 1148 [4th Dept 2021], lv denied 37 NY3d 915 [2021]). 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 AD3d 158, 159 [1st Dept 2009], lv denied 12 NY3d 708 [2009]; see Nicholson, 227 AD3d at 1443; Kingdollar, 196 AD3d at 1148).

We reject defendant's further contention that his attorney was ineffective in failing to adequately communicate with him prior to the SORA hearing. At the SORA hearing, defendant's attorney acknowledged that she had not been able to meet with defendant prior to the hearing and expressly requested an adjournment to allow her that opportunity. Defendant, however, expressly stated that he wanted to proceed with the SORA hearing, and therefore no adjournment occurred. Defendant thus effectively waived any contention that his attorney was ineffective in failing to communicate with him (see generally People v Drennan, 81 AD3d 1279, 1281 [4th Dept 2011], lv denied 16 NY3d 858 [2011], reconsideration denied 17 NY3d 816 [2011]). Nevertheless, under the circumstances of this case and in light of our conclusion that a request for a downward departure had little or no chance of success, we conclude that defendant's attorney was not ineffective in failing to communicate with defendant (cf. People v Moore, 208 AD3d 1514, 1515 [3d Dept 2022]; People v VonRapacki, 204 AD3d 41, 44 [3d Dept 2022]).

We have considered defendant's remaining contention and conclude that it does not warrant reversal or modification of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court