THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHARLES WESTFALL DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHARLES R. WESTFALL, DEFENDANT–APPELLANT.

KA 11–02126

Decided: February 14, 2014

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ. CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an amended order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).   Contrary to defendant's contention, County Court's determination to classify him in accordance with his presumptive classification as a level two risk is supported by the requisite clear and convincing evidence (see § 168–n [3];  People v. Carbone, 89 AD3d 1392, 1392–1393, lv denied 18 NY3d 806).   Contrary to defendant's further contention, he received effective assistance of counsel at the SORA hearing (see People v. Reid, 59 AD3d 158, 158–159, lv denied 12 NY3d 708).   Based upon the information contained in the presentence report and defendant's admissions in the underlying criminal proceeding, defense counsel could have reasonably concluded that, beyond the downward departure requested by defense counsel, there was nothing to litigate at the hearing (see id. at 159;  cf.  People v. DeFreitas, 213 A.D.2d 96, 101–102, lv denied 86 N.Y.2d 872).   Defendant's contention that defense counsel was ineffective because he did not present the testimony of a “sexual therapy guy” with whom defendant had spoken at some time before the hearing concerns matters dehors the record and is thus not subject to review in this appeal (see generally People v. Gravino, 14 NY3d 546, 558).

Frances E. Cafarell

Clerk of the Court