Opinion
No. 741 KA 24-00083
12-20-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ERWIN WILLIAMS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BENJAMIN L. ANDERSON OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH DANNAN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BENJAMIN L. ANDERSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH DANNAN OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., BANNISTER, OGDEN, NOWAK, AND DELCONTE, JJ.
Appeal from an order of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), entered June 12, 2023. The order, among other things, determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
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 and a sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).
Defendant contends that Supreme Court erred in denying his request for a downward departure. We reject that contention. Even assuming, arguendo, that defendant satisfied his burden with respect to the first two steps of the three-step analysis required in evaluating a request for a downward departure (see e.g. People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud, 198 A.D.3d 542, 542 [1st Dept 2021], lv denied 38 N.Y.3d 902 [2022]; People v Palmer, 166 A.D.3d 536, 537 [1st Dept 2018], lv denied 32 N.Y.3d 919 [2019]; see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]), we conclude, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two (see People v Scott, 186 A.D.3d 1052, 1054-1055 [4th Dept 2020], lv denied 36 N.Y.3d 901 [2020]; see also People v Gillotti, 119 A.D.3d 1390, 1391 [4th Dept 2014]).
Contrary to defendant's further contention, his counsel was not ineffective for failing to request a downward departure based on defendant's age "because such a request had little or no chance of success" (People v Felder, 229 A.D.3d 1278, 1279 [4th Dept 2024] [internal quotation marks omitted]). Moreover, "viewing the evidence, the law and the circumstances of this case in totality and as of the time of representation," we conclude that defendant received effective assistance of counsel (People v Russell, 115 A.D.3d 1236, 1236 [4th Dept 2014]).