Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent, v. Charles R. WESTFALL, Defendant–Appellant.
Appeal from an amended order of the Cattaraugus County Court (Larry M. Himelein, J.), entered September 13, 2011. The amended order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act. Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
Appeal from an amended order of the Cattaraugus County Court (Larry M. Himelein, J.), entered September 13, 2011. The amended order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from an amended order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). Contrary to defendant's contention, County Court's determination to classify him in accordance with his presumptive classification as a level two risk is supported by the requisite clear and convincing evidence ( see § 168–n [3]; People v. Carbone, 89 A.D.3d 1392, 1392–1393, 933 N.Y.S.2d 464,lv. denied 18 N.Y.3d 806, 2012 WL 445872). Contrary to defendant's further contention, he received effective assistance of counsel at the SORA hearing ( see People v. Reid, 59 A.D.3d 158, 158–159, 872 N.Y.S.2d 452,lv. denied 12 N.Y.3d 708, 881 N.Y.S.2d 17, 908 N.E.2d 925). Based upon the information contained in the presentence report and defendant's admissions in the underlying criminal proceeding, defense counsel could have reasonably concluded that, beyond the downward departure requested by defense counsel, there was nothing to litigate at the hearing ( see id. at 159, 872 N.Y.S.2d 452;cf. People v. DeFreitas, 213 A.D.2d 96, 101–102, 630 N.Y.S.2d 755,lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777). Defendant's contention that defense counsel was ineffective because he did not present the testimony of a “sexual therapy guy” with whom defendant had spoken at some time before the hearing concerns matters dehors the record and is thus not subject to review in this appeal ( see generally People v. Gravino, 14 N.Y.3d 546, 558, 902 N.Y.S.2d 851, 928 N.E.2d 1048).
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs. SCUDDER, P.J., CENTRA, FAHEY, CARNI, and VALENTINO, JJ., concur.