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

The PEOPLE of the State of New York, Respondent, v. Andre R. ALLEN, Appellant.


Decided: November 27, 2019

Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ. Brian M. Quinn, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.


Appeal from an order of the County Court of Saratoga County (Murphy III, J.), entered July 9, 2018, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the third degree based upon his admission to having sexual intercourse with a 15–year–old girl when he was 28 years old, and was sentenced to a prison term of 21/212 years with 10 years of postrelease supervision (People v. Allen, 165 A.D.3d 1348, 83 N.Y.S.3d 919 [2018]). In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) that, based upon a total score of 115 points, presumptively classified him as a risk level three sex offender. The People prepared a risk assessment instrument that scored a total of 110 points, also a presumptive risk level three classification. Following a hearing, which defendant chose not to attend but at which he was represented by counsel, County Court concluded that a total score of 95 points was warranted and classified defendant as a risk level two sex offender. Defendant appeals.

We affirm. Defendant contends that he is entitled to a downward departure from his presumptive risk level two to a risk level one, based primarily upon his low score on the STATIC–99R Risk Assessment Instrument. However, as defendant concedes, he did not raise this argument or request this relief before County Court and, thus, it is unpreserved for our review (see People v. Johnson, 11 N.Y.3d 416, 421–422, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008]; People v. Charache, 9 N.Y.3d 829, 830, 841 N.Y.S.2d 223, 873 N.E.2d 267 [2007]; People v. Rupnarain, 123 A.D.3d 1387, 1388, 998 N.Y.S.2d 267 [2014]; People v. Bush, 105 A.D.3d 1179, 1180, 964 N.Y.S.2d 270 [2013], lv denied 21 N.Y.3d 860, 2013 WL 3214443 [2013]).1 Assuming, without deciding, that this Court has the authority to exercise our interest of justice jurisdiction in a sex offender classification proceeding, which is civil in nature (see People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010]; compare CPLR 5712[c], with CPL 470.15[3][c]; [6] ), under the circumstance of this case, we decline defendant's request to do so.

Lastly, we reject defendant's contention that his counsel's failure to request a downward modification of his risk level classification constituted the ineffective assistance of counsel.2 The failure to request a downward departure of a risk level classification “does not necessarily constitute the ineffective assistance of counsel” (People v. Jones, 172 A.D.3d 1786, 1787, 99 N.Y.S.3d 510 [2019]; see People v. Gressler, 166 A.D.3d 1249, 1249–1250, 87 N.Y.S.3d 735 [2018], lv denied 32 N.Y.3d 918, 2019 WL 1348738 [2019]). Given that defense counsel successfully persuaded County Court that defendant should not be assigned 15 points under risk factor 11 for history of drug or alcohol abuse, thereby contributing to the reduction of defendant's presumptive risk level from a risk level three to a risk level two classification, we are satisfied that defendant received meaningful representation (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]; 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]; People v. Nichols, 80 A.D.3d 1013, 1014, 915 N.Y.S.2d 374 [2011]).

ORDERED that the order is affirmed, without costs.


1.   Although defendant submitted a letter to County Court challenging the assessment of points in the risk assessment instruments, he did not request a downward departure and thereafter voluntarily declined to attend the hearing (see Correction Law § 168–n [6] ).

2.   We assume, without deciding, that defendant has the right to the effective assistance of counsel (see Correction Law § 168–n [3]; People v. Bowles, 89 A.D.3d 171, 176–179, 932 N.Y.S.2d 112 [2011], lv denied 18 N.Y.3d 807, 2012 WL 489796 [2012]; see also People v. Pressley, 154 A.D.3d 530, 530, 61 N.Y.S.3d 882 [2017], lv denied 30 N.Y.3d 909, 2018 WL 358535 [2018]; People v. Santana, 72 A.D.3d 538, 539, 898 N.Y.S.2d 455 [2010], lv denied 15 N.Y.3d 705, 2010 WL 3396888 [2010]).

Egan Jr., J.P.

Lynch, Clark and Pritzker, JJ., concur.

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