PEOPLE v. EASON (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Stephan G. Schick, J.), entered January 27, 2021 in Sullivan County, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2016, defendant – a prior felony sex offender – pleaded guilty to use of a child in a sexual performance, possessing a sexual performance by a child and failure to register as a sex offender and was sentenced to a prison term of five years, to be followed by 10 years of postrelease supervision.  Prior to his anticipated release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6–C) that presumptively scored defendant as a risk level two sex offender (90 points).  However, defendant's prior felony conviction for a sex crime triggered an automatic override, resulting in a presumptive risk level three classification.  At the conclusion of the hearing that followed, Supreme Court classified defendant as a risk level three sex offender with a predicate sex offender designation and denied defendant's request for a downward departure.  This appeal ensued.

The People concede, and our review of the record confirms, that defendant did not receive notice of the risk level classification hearing at least 20 days prior thereto as required by Correction Law § 168–n (3) and that defense counsel was not provided with certain of the exhibits relied upon by the People until the start of the virtual hearing.  The record further reflects that counsel expressed concern that he had not been afforded an adequate opportunity to speak with defendant.  That said, Supreme Court granted counsel's request to confer with defendant and briefly adjourned the hearing for that purpose, after which counsel indicated that he was ready to proceed.  As defendant raised no objection to either the timeliness of the notice nor the decision to proceed with the hearing and did not otherwise request a further adjournment of the proceedings, we find his due process claims to be unpreserved for our review (see People v. Charache, 9 N.Y.3d 829, 830, 841 N.Y.S.2d 223, 873 N.E.2d 267 [2007];  People v. Eaglin, 227 A.D.3d 1283, 1284, 212 N.Y.S.3d 238 [3d Dept. 2024];  People v. Warrington, 19 A.D.3d 881, 882, 797 N.Y.S.2d 622 [3d Dept. 2005];  People v. Tilley, 305 A.D.2d 1041, 1041, 758 N.Y.S.2d 891 [4th Dept. 2003], lv denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491 [2003];  cf.  People v. Bush, 105 A.D.3d 1179, 1180, 964 N.Y.S.2d 270 [3d Dept. 2013], lv denied 21 N.Y.3d 860, 2013 WL 3214443 [2013]).

Although there is no question that defendant was entitled to the effective assistance of counsel at the risk level classification hearing (see e.g. People v. Lopez, 226 A.D.3d 1165, 1166, 209 N.Y.S.3d 622 [3d Dept. 2024], lv denied 42 N.Y.3d 905, 218 N.Y.S.3d 580, 243 N.E.3d 534 [2024];  People v. Vonrapacki, 204 A.D.3d 41, 43, 162 N.Y.S.3d 540 [3d Dept. 2022]), his claim that he was denied meaningful representation is unpersuasive.  To succeed in this regard, “defendant [was] required to demonstrate that he ․ was not provided meaningful representation and that there [was] an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” (People v. Rivera, 206 A.D.3d 1356, 1360, 170 N.Y.S.3d 672 [3d Dept. 2022] [internal quotation marks and citations omitted], affd 39 N.Y.3d 1062, 183 N.Y.S.3d 57, 203 N.E.3d 632 [2023], cert denied ––– U.S. ––––, 143 S.Ct. 2675, ––– L.Ed.2d –––– [2023]).  After conferring with defendant and reviewing the People's exhibits – and after acknowledging that a delay in the hearing could negatively impact defendant's then-impending release date – defense counsel indicated that he was ready to proceed (compare People v. Moore, 208 A.D.3d 1514, 1515, 175 N.Y.S.3d 148 [3d Dept. 2022]).  Defense counsel then argued, albeit unsuccessfully, in favor of a downward departure to a risk level two classification citing, among other things, defendant's acceptance of responsibility, successful completion of sex offender treatment and satisfactory conduct while confined, as well as defendant's documented mental health and cognitive issues (compare id.).  Finally, given that defendant's mental health and cognitive concerns, which the People did not dispute, were addressed in some detail in the case summary, we do not find that defense counsel's failure to procure additional medical or psychological evaluations constituted ineffective assistance.  In short, and upon reviewing the record as a whole, we are satisfied that defendant was afforded meaningful representation.

As for Supreme Court's denial of defendant's request for a downward departure, “defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines” (People v. Sanders, 228 A.D.3d 1184, 1186, 214 N.Y.S.3d 232 [3d Dept. 2024] [internal quotation marks and citations omitted];  see People v. Hyman, 228 A.D.3d 1080, 1081, 211 N.Y.S.3d 829 [3d Dept. 2024]).  “Even if such a mitigating factor exists, the court then must make a discretionary determination as to whether the overall circumstances warrant a departure to prevent an overassessment of ․ defendant's dangerousness and risk of sexual recidivism” (People v. Kraft, 229 A.D.3d 1016, 1017, 215 N.Y.S.3d 606 [3d Dept. 2024] [internal quotation marks and citations omitted]).  Defendant's acceptance of responsibility and satisfactory conduct while confined (see People v. McDermott, 230 A.D.3d 1484, 1486, 220 N.Y.S.3d 168 [3d Dept. 2024]), as well as his successful completion of treatment (see People v. Scott, 230 A.D.3d 1487, 1488, 220 N.Y.S.3d 172 [3d Dept. 2024]), were adequately taken into consideration by the risk assessment instrument and relevant guidelines.  “Contrary to defendant's contention, his presumptive risk level two designation prior to the application of the automatic override is not a mitigating factor, as the automatic override is applied irrespective of the points scored on the risk assessment instrument” (People v. Jones, 226 A.D.3d 1265, 1267, 210 N.Y.S.3d 334 [3d Dept. 2024] [internal quotation marks, ellipsis and citations omitted], lv denied 42 N.Y.3d 907, 2024 WL 4558686 [2024]).  Accordingly, upon consideration of the totality of the circumstances, we find no abuse of discretion in Supreme Court's classification of defendant as a risk level three sex offender.  Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.

Egan Jr., J.P.

Pritzker, Lynch, Fisher and Powers, JJ., concur.