PEOPLE v. MANGIONE

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

The PEOPLE of the State of New York, Respondent, v. Nicholas MANGIONE, Defendant–Appellant.

135

Decided: February 01, 2019

PRESENT:  SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order classifying him as a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  The Board of Examiners of Sex Offenders (Board) assessed a score of 30 points against defendant, making him a presumptive level one risk, but recommended an upward departure to a level two risk based on the existence of aggravating factors.  Supreme Court agreed with the Board's recommendation.  As defendant correctly concedes, his contention that the record does not contain clear and convincing evidence establishing the existence of the aggravating factors is unpreserved.  In any event, that contention lacks merit and, contrary to defendant's further contention, the court properly concluded that the aggravating factors outweighed defendant's mitigating circumstances (see People v. Tatner, 149 A.D.3d 1595, 1595–1596, 53 N.Y.S.3d 445 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908393 [2017];  People v. Guyette, 140 A.D.3d 1555, 1556, 35 N.Y.S.3d 518 [3d Dept. 2016];  see generally People v. Perez, 158 A.D.3d 1070, 1071, 70 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2013412 [2018] ).

We reject defendant's additional contention that he was denied effective assistance of counsel.  “It is well established that ‘[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. Greenfield, 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5149744 [2015], quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ).  Here, although defendant contends that his assigned counsel was ineffective for, inter alia, failing to challenge the aggravating factors listed by the Board, the record establishes that there was no colorable basis for making such a challenge.  We have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the order.