People v. Allen
| Decision Date | 27 November 2019 |
| Docket Number | 527439 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Andre R. ALLEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
177 A.D.3d 1224
115 N.Y.S.3d 133
The PEOPLE of the State of New York, Respondent,
v.
Andre R. ALLEN, Appellant.
527439
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 18, 2019
Decided and Entered: November 27, 2019
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from an order of the County Court of Saratoga County (Murphy III, J.), entered July 9, 2018, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to rape in the third degree based upon his admission to having sexual intercourse with a 15–year–old girl when he was 28 years old, and was sentenced to a prison term of 2½ years with 10 years of postrelease supervision ( People v. Allen, 165 A.D.3d 1348, 83 N.Y.S.3d 919 [2018] ). In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) that, based upon a total score of 115 points, presumptively classified him as a risk level three sex offender. The People prepared a risk assessment instrument that scored a total of 110 points, also a presumptive risk level three classification. Following a hearing, which defendant chose not to attend but at
which he was represented by counsel, County Court concluded that a total score of 95 points was warranted and classified defendant as a risk level two sex offender. Defendant appeals.
We affirm. Defendant contends that he is entitled to a downward departure from his presumptive risk level two to a risk level one, based primarily upon his low score on the STATIC–99R Risk Assessment Instrument. However, as defendant concedes, he did not raise this argument or request this relief before County Court and, thus, it is unpreserved for our review (see People v....
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People v. Smith
...deciding that defendant was entitled to the effective assistance of counsel at this non-criminal proceeding (see People v. Allen, 177 A.D.3d 1224, 1225 n. 2, 115 N.Y.S.3d 133 [2019] ; see also People v. Stevens, 91 N.Y.2d 270, 277, 669 N.Y.S.2d 962, 692 N.E.2d 985 [1998] ).3 County Court ha......
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People v. Vonrapacki
...89 A.D.3d 171, 177–178, 932 N.Y.S.2d 112 [2011], lv denied 18 N.Y.3d 807, 2012 WL 489796 [2012] ; see also People v. Allen, 177 A.D.3d 1224, 1225 n. 2, 115 N.Y.S.3d 133 [2019] [assuming, without deciding, that a SORA defendant has the right to the effective assistance of counsel]; cf. Matte......
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People v. Smith
...without deciding that defendant was entitled to the effective assistance of counsel at this non-criminal proceeding (see People v Allen, 177 A.D.3d 1224, 1225 n 2 [2019]; see also People v Stevens, 91 N.Y.2d 270, 277 [1998]). [3] County Court had no opportunity to consider whether an upward......
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People v. Smith
...without deciding that defendant was entitled to the effective assistance of counsel at this non-criminal proceeding (see People v Allen, 177 A.D.3d 1224, 1225 n 2 [2019]; see also People v Stevens, 91 N.Y.2d 270, 277 [1998]). [3] County Court had no opportunity to consider whether an upward......