COBB, ALLEN, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
642
KA 14-01483
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ALLEN COBB, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Erie County Court (Michael F.
Pietruszka, J.), entered July 21, 2014. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.
It is hereby ORDERED that the order so appealed from is reversed
on the law without costs and the matter is remitted to Erie County
Court for further proceedings in accordance with the following
memorandum: Defendant appeals from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.). We reject defendant’s contention that
the People failed to establish by clear and convincing evidence the
applicability of an override to a presumptive level three risk based
on his diagnosis of pedophilia (see People v Lagville, 136 AD3d 1005,
1006; cf. People v McCollum, 41 AD3d 1187, 1188, lv denied 9 NY3d
807). We nevertheless agree with defendant that County Court erred in
denying his request for a downward departure to a level two risk on
the ground that it applied an incorrect burden of proof, i.e., clear
and convincing evidence rather than preponderance of the evidence (see
People v Gillotti, 23 NY3d 841, 863-864). We therefore reverse the
order, and we remit the matter to County Court for a determination of
defendant’s request for a downward departure, following a further
hearing if necessary. We note that the record is not clear whether
information provided to this Court in connection with defendant’s
appeal had been received by County Court before it issued its
decision. Finally, we reject defendant’s contention that he was
denied effective assistance of counsel (see People v Russell, 115 AD3d
1236, 1236, lv denied 118 AD3d 1369; see generally People v Baldi, 54
NY2d 137, 147).
Entered: July 8, 2016 Frances E. Cafarell
Clerk of the Court