Opinion
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.
MEMORANDUM AND ORDER
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, 152 N.Y.S.3d 385 [4th Dept. 2021], lv denied 37 N.Y.3d 919, 2022 WL 454270 [2022] ; 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] ; People v. Ortiz , 186 A.D.3d 1087, 1088, 127 N.Y.S.3d 363 [4th Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878188 [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, 137 N.Y.S.3d 781 [4th Dept. 2021] ; People v. Antonetti , 188 A.D.3d 1630, 1632, 134 N.Y.S.3d 601 [4th Dept. 2020], lv denied 36 N.Y.3d 910, 142 N.Y.S.3d 475, 166 N.E.3d 549 [2021] ; see generally People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [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, 132 N.Y.S.3d 503 [4th Dept. 2020] ; People v. Greenfield , 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5149744 [2015] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [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, 174 N.Y.S.3d 917 [4th Dept. 2022] ; Hackett , 198 A.D.3d at 1324, 152 N.Y.S.3d 385 ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).