        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

317
KA 14-00973
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. GREENFIELD, DEFENDANT-APPELLANT.


PATRICK T. CHAMBERLAIN, PENN YAN, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from an order of the Jefferson County Court (Kim H.
Martusewicz, J.), dated May 5, 2014. The order determined that
defendant is a level two 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 two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court’s determination that defendant is a level two risk is
based upon clear and convincing evidence (see generally § 168-n [3]),
including “reliable hearsay contained in the case summary and the
presentence report” (People v Thompson, 66 AD3d 1455, 1456, lv denied
13 NY3d 714; see People v Young, 108 AD3d 1232, 1232, lv denied 22
NY3d 853, rearg denied 22 NY3d 1036; People v Lewis, 45 AD3d 1381,
1381, lv denied 10 NY3d 703). Defendant failed to preserve for our
review his challenge to the manner in which the hearing was conducted
(see People v Tubbs, 124 AD3d 1094, 1095; People v Williamson, 73 AD3d
1398, 1398-1399) and, in any event, we conclude that the requisite
standards were met (see generally § 168-n [3]).

     We reject defendant’s further contention that he was denied
effective assistance of counsel because his attorney failed to request
a downward departure from the presumptive risk level (see People v
Goldbeck, 104 AD3d 567, 567-568, lv denied 21 NY3d 860; People v Reid,
59 AD3d 158, 159, lv denied 12 NY3d 708). It is well established that
“[a] defendant is not denied effective assistance of . . . counsel
merely because counsel does not make a motion or argument that has
little or no chance of success” (People v Stultz, 2 NY3d 277, 287,
rearg denied 3 NY3d 702) and, here, we conclude that there are no
“mitigating factors warranting a downward departure from his risk
level” (People v Merkley, 125 AD3d 1479, ___; see People v Sells, 115
                                 -2-                           317
                                                         KA 14-00973

AD3d 1345, 1346, lv denied 23 NY3d 905; People v Hays, 99 AD3d 1212,
1212-1213, lv denied 20 NY3d 854).

     Finally, we conclude that, contrary to defendant’s contention,
the court complied with the statutory mandate that the court set forth
in the order “the findings of fact and conclusions of law” on which
the determination is based (Correction Law § 168-n [3]; see People v
Carter, 35 AD3d 1023, 1023-1024, lv denied 8 NY3d 810).




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
