People v Santana

People v Santana 2010 NY Slip Op 03175 [72 AD3d 538] April 20, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

The People of the State of New York, Respondent,
v
Julio Santana, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), for respondent.

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about June 8, 2007, which adjudicated defendant a level three sex offender and sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Assuming, without deciding, that the state and federal standards for effective assistance at a criminal trial apply to a sex offender adjudication (see People v Reid, 59 AD3d 158 [2009], lv denied 12 NY3d 708 [2009]), we conclude that defendant received effective assistance at the classification hearing (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Given the seriousness of the aggravating factors, counsel could have reasonably concluded there was nothing more that could be done to avoid an upward departure to level three (see People v DeFreitas, 213 AD2d 96, 101 [1995], lv denied 86 NY2d 872 [1995]). In any event, the alleged deficiencies in counsel's performance did not affect the outcome or deprive defendant of a fair hearing.

Defendant's argument that the People failed to provide him with notice of their intent to seek a risk level classification different from the Board's recommendation is improperly raised for the first time on appeal (see People v Charache, 9 NY3d 829 [2007]). Concur—Andrias, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.