PEOPLE v. GRESSLER (2018)

MEMORANDUM AND ORDER

In 1995, defendant was convicted of sodomy in the first degree and two counts of sexual abuse in the first degree.  In anticipation of his release from custody, 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) designating him as a presumptive risk level three sex offender.  After a hearing, County Court reduced defendant's score to 140 points and found that the People had established, by clear and convincing evidence, that defendant was a risk level three sex offender.  Defendant appeals, and we affirm.

Defendant's sole contention is that he was denied the effective assistance of counsel.  Contrary to defendant's arguments, his representation was not rendered ineffective by counsel's decision not to seek a downward departure based on defendant's age – 48 years old at the time of the determination – and his diagnosis with attention deficit disorder (see People v. Butler, 161 A.D.3d 1232, 1232–1233, 76 N.Y.S.3d 651 [2018], lv denied 32 N.Y.3d 904, 2018 WL 4354713 [2018] ).  In addition, although defendant notes that the presentence report (hereinafter PSR) refers to an apparent factual inaccuracy regarding the nature of defendant's sexual contact with one of the victims, defense counsel raised the inaccuracy at the hearing and objected to consideration of the PSR. In any event, County Court set forth that its determination was based upon the accurate case summary in addition to the PSR with respect to defendant's conduct.

In light of the foregoing, and given that defense counsel raised appropriate objections and successfully challenged the assessment of points on the risk assessment instrument, we are satisfied that defendant received meaningful representation (see id.;  People v. Lightaul, 138 A.D.3d 1256, 1258, 30 N.Y.S.3d 739 [2016], lv denied 28 N.Y.3d 907, 2016 WL 6433279 [2016] ).

ORDERED that the order is affirmed, without costs.

Devine, J.P.

Mulvey, Rumsey and Pritzker, JJ., concur.