Opinion
No. 1002 KA 23-01039
12-22-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN J. MOTELL, IV, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND DELCONTE, JJ.
Appeal from an order of the Oswego County Court (Spencer J. Ludington, A.J.), entered March 4, 2019. 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 determining that he is a level two risk and a sexually violent offender under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in refusing to grant him a downward departure to a level one risk. That contention is not preserved for our review (see People v Hackett, 198 A.D.3d 1323, 1323 [4th Dept 2021], lv denied 37 N.Y.3d 919 [2022]; People v Stack, 195 A.D.3d 1559, 1560 [4th Dept 2021], lv denied 37 N.Y.3d 915 [2021]; People v Ortiz, 186 A.D.3d 1087, 1088 [4th Dept 2020], lv denied 36 N.Y.3d 901 [2020]). In any event, defendant's contention lacks merit. Even assuming, arguendo, that he demonstrated the existence of an appropriate mitigating factor, we would nevertheless conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; People v Antonetti, 188 A.D.3d 1630, 1632 [4th Dept 2020], lv denied 36 N.Y.3d 910 [2021]; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]).
In light of our determination, we reject defendant's further contention that he received ineffective assistance of counsel based on counsel's failure to request a downward departure (see People v Whiten, 187 A.D.3d 1661, 1662 [4th Dept 2020]; People v Greenfield, 126 A.D.3d 1488, 1489 [4th Dept 2015], lv denied 26 N.Y.3d 903 [2015]; see generally People v Caban, 5 N.Y.3d 143, 152 [2005]). 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 People v Clement, 209 A.D.3d 1300, 1300-1301 [4th Dept 2022]; Hackett, 198 A.D.3d at 1324; see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]).