PEOPLE v. REYES (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated November 9, 2021, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

Following a hearing, the Supreme Court designated the defendant a level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C).  The defendant appeals.

“A defendant has a right to the effective assistance of counsel in a SORA proceeding” (People v. Bertrand, 194 A.D.3d 1081, 1081, 144 N.Y.S.3d 593).  “Under the federal ineffective assistance of counsel standard, the defendant must satisfy a two-pronged test in order to establish that counsel was ineffective:  (1) ‘that counsel's representation fell below an objective standard of reasonableness,’ and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ ” (People v. Wolbert, 207 A.D.3d 483, 485, 169 N.Y.S.3d 548, quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674;  see People v. Georgiou, 38 A.D.3d 155, 160, 828 N.Y.S.2d 541).  “Under the New York standard, the first prong is identical to its federal counterpart, but the second prong is based on the fairness of the process as a whole rather than the impact of counsel's errors on the outcome of the case” (People v. Wolbert, 207 A.D.3d at 485, 169 N.Y.S.3d 548;  see People v. Georgiou, 38 A.D.3d at 160–161, 828 N.Y.S.2d 541).  Nonetheless, even under the state standard, defense counsel is not ineffective for failing to advance an argument that had little to no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).

Here, although defense counsel arguably should have made an application for a downward departure from the defendant's presumptive SORA risk level, counsel's “omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel” (People v. Carman, 194 A.D.3d 760, 763, 147 N.Y.S.3d 119, affd 38 N.Y.3d 972, 167 N.Y.S.3d 29, 187 N.E.3d 452;  see People v. Sprosta, 221 A.D.3d 836, 838, 200 N.Y.S.3d 78;  cf.  People v. Bertrand, 194 A.D.3d at 1081–1082, 144 N.Y.S.3d 593).  Under the circumstances, a downward departure application would have had little or no chance of success, and there is no reasonable probability that had counsel requested a downward departure, the result of the proceeding would have been different (see People v. Sprosta, 221 A.D.3d at 838, 200 N.Y.S.3d 78;  People v. Carman, 194 A.D.3d at 763, 147 N.Y.S.3d 119).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

DILLON, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.