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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

 

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