People v Russell

People v Russell 2014 NY Slip Op 01912 Released on March 21, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on March 21, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.
273 KA 12-00926

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JIMMY DEAN RUSSELL, DEFENDANT-APPELLANT.


Appeal from an order of the Orleans County Court (James P. Punch, J.), entered May 8, 2012. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.


MATTHEW T. AUSTIN, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.


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

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.). Although "[a] sex offender facing risk level classification under SORA has a right to . . . effective assistance of counsel" (People v Willingham, 101 AD3d 979, 979), we conclude that, viewing the evidence, the law and the circumstances of this case in totality and as of the time of representation, defendant received effective assistance of counsel (see People v Young, 108 AD3d 1232, 1232, lv denied 22 NY3d 853, rearg denied 22 NY3d 1036; see generally People v Baldi, 54 NY2d 137, 147). Even assuming, arguendo, that defense counsel erred in failing to object to the admission in evidence of the document at issue, we conclude that the case summary alone is sufficient to support County Court's determination with respect to the risk factor at issue (see Young, 108 AD3d at 1232; People v Guzman, 96 AD3d 1441, 1441-1442, lv denied 19 NY3d 812).
Entered: March 21, 2014
Frances E. Cafarell
Clerk of the Court