Hyperlawhypertext legal databasebeta People v. Abner 101 A.D.3d 1628

← Cases

People v. Abner

101 A.D.3d 1628 Court N.Y. App. Div. Decision date 2012-12-21 English

Contents

Majority

p. 1628
The People of the State of New York, Respondent, v Jesse Abner, Appellant.
[956 NYS2d 351]

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that he received ineffective assistance of counsel because his attorney failed to challenge the requirement that he register as a sex offender. We reject that contention. At the time of defendant’s SORA hearing, any challenge to the registration require

p. 1629
ment in the context of a SORA proceeding was foreclosed by our decision in People v Carabello ( 309 AD2d 1227 , 1228 [2003]), where we held, consistent with the other Departments of the Appellate Division, that a challenge to the registration requirement “constitutes a challenge to a determination of an administrative agency” and must therefore be raised in a CPLR article 78 proceeding. We note that defendant does not contend that his attorney was ineffective for failing to commence a CPLR article 78 proceeding on his behalf (cf. People v Reitano, 68 AD3d 954 , 955 [2009], lv denied 14 NY3d 708 [2010]). Approximately nine months after defendant’s SORA hearing, the Court of Appeals reversed the First Department’s decision in People v Liden ( 79 AD3d 598 [2010], revd 19 NY3d 271 [2012]) and thereby abrogated our ruling in Carabello, holding that “[a] determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender’s risk level” ( 19 NY3d at 273 ). In our view, defense counsel cannot be deemed ineffective for merely failing to anticipate the change in the law brought about by Liden (see generally People v Schrock, 99 AD3d 1196 , 1196 [2012]; Matter of State of New York v Company, 77 AD3d 92 , 99 [2010], lv denied 15 NY3d 713 [2010]).

We also reject defendant’s contention that County Court failed to make adequate findings of fact supporting its determination that defendant is a level three risk. The court’s “ ‘oral findings are supported by the record and sufficiently detailed to permit intelligent review; thus, remittal is not required despite defendant’s accurate assertion regarding the court’s failure to render an order setting forth the findings of fact . . . upon which its determination is based’ ” (People v Gosek, 98 AD3d 1309 , 1310 [2012]).

We have reviewed defendant’s remaining contentions and conclude that they lack merit. Present — Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.

Cases cited

Statutes and regulations cited