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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

The Second Department determined defense counsel was ineffective the SORA risk-level assessment proceeding:

The defendant was convicted, in federal court, of possession of child pornography … . After a hearing to determine his level of risk pursuant to the Sex Offender Registration Act … , at which the defendant was assessed 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victims), and 20 points under risk factor 7 (victims were strangers), the defendant was designated a level two sex offender. …

A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the only argument that defense counsel made at the hearing—challenging the assessment of points under risk factors 3 and 7 in light of the nature of the offense—had been soundly rejected by the Court of Appeals … and this Court … . Under the particular circumstances of this case, defense counsel’s failure to apply, instead, for a downward departure on the basis of an overassessment of risk level due to application of points under risk factors 3 and 7 … , demonstrated a misunderstanding of the relevant law and amounted to ineffective assistance of counsel … . People v Bertrand, 2021 NY Slip Op 03338, Second Dept 5-25-21

 

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