Opinion
515 KA 22-01398
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Vince M. FERRIS, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER 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. ). We agree with defendant that County Court violated his due process rights by sua sponte assessing or increasing points for three of the risk factors in the risk assessment instrument (RAI) without notice to him. "The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment" ( People v. Chrisley, 172 A.D.3d 1914, 1915, 99 N.Y.S.3d 569 [4th Dept. 2019] [internal quotation marks omitted]; see § 168–n [3]; People v. Hackett , 89 A.D.3d 1479, 1480, 933 N.Y.S.2d 470 [4th Dept. 2011] ). Here, neither the Board of Examiners of Sex Offenders (Board) nor the People requested the assessment of points under risk factors 6 and 12 or an increase of points assessed under risk factor 2, and defendant learned of the assessment of additional points for the first time when the court issued its decision (see Hackett , 89 A.D.3d at 1480, 933 N.Y.S.2d 470 ; cf. People v. Wheeler , 59 A.D.3d 1007, 1008, 872 N.Y.S.2d 360 [4th Dept. 2009], lv denied 12 N.Y.3d 711, 2009 WL 1309378 [2009] ). However, the court's error was harmless inasmuch as defendant was already a presumptive level three risk based on the RAI prepared by the Board and recommended for adoption by the People (cf. People v. Ritchie , 203 A.D.3d 1562, 1564, 163 N.Y.S.3d 719 [4th Dept. 2022] ; see generally People v. June , 195 A.D.3d 1443, 1444-1445, 145 N.Y.S.3d 469 [4th Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782541 [2021] ).
Contrary to defendant's contention, we conclude that the court complied with Correction Law § 168-n (3), requiring the court to set forth the findings of fact and conclusions of law on which it based its determination (cf. People v. Dean , 169 A.D.3d 1414, 1415, 91 N.Y.S.3d 651 [4th Dept. 2019] ). We further reject defendant's contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Stack , 195 A.D.3d 1559, 1560, 145 N.Y.S.3d 901 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5475414 [2021] ).
We have considered defendant's remaining contentions and conclude they do not warrant modification or reversal of the order.