ALLPORT, BRIAN, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1137
KA 15-00656
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRIAN ALLPORT, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Orleans County Court (James P. Punch,
J.), entered March 4, 2015. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: On appeal from an order classifying him as a level
two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that he was denied
effective assistance of counsel at the SORA classification proceeding.
We reject that contention. Defendant’s contention that his attorney
at the classification proceeding should have challenged each of the
points assessed is without merit. “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 AD3d 1488, 1489, lv
denied 26 NY3d 903, quoting People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702). Here, the record establishes that there was no
colorable basis for challenging any of the points assessed. With
respect to defendant’s further contention that counsel was ineffective
in failing to seek a downward departure from defendant’s presumptive
risk level, “we conclude that there are no ‘mitigating factors
warranting a downward departure from his risk level’ ” (id.). Thus,
contrary to defendant’s contention, “[c]ounsel could have reasonably
concluded that there was nothing to litigate at the hearing” (People v
Reid, 59 AD3d 158, 159, lv denied 12 NY3d 708; see People v Westfall,
114 AD3d 1264, 1264; see also People v Bowles, 89 AD3d 171, 181, lv
denied 18 NY3d 807).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court