| People v Byrd |
| 2008 NY Slip Op 10211 [57 AD3d 442] |
| December 30, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Darrell Byrd, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Andrew S. Holland of counsel), forrespondent.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about December14, 2006, which adjudicated defendant a level two sex offender pursuant to the Sex OffenderRegistration Act (SORA) (Correction Law art 6-C), and order, same court and Justice, entered onor about May 17, 2007, which denied his motion to vacate the prior order on the ground, amongothers, of denial of the right to counsel, unanimously affirmed, without costs.
The court acted properly, and in any event did not cause defendant any prejudice, when, afterdefendant's trial counsel declined to represent him at the SORA hearing, it appointed, withdefendant's consent, a competent attorney from the County Law article 18-B panel to do so ratherthan appointing the Legal Aid Society, which was representing defendant on a pending CPLarticle 440 motion. At no point during the SORA hearing did defendant or his newly assignedcounsel object that the attorney with the Legal Aid Society should represent defendant or that thecourt should have contacted that attorney. The court did not interfere with an establishedattorney-client relationship (see People v Knowles, 88 NY2d 763, 766 [1996]; Peoplev Hall, 46 NY2d 873, 875 [1979]), because defendant's relationship with his Legal Aidattorney was limited to his direct appeal, which had been completed years before, and to his CPLarticle 440 motion. The representation did not extend to the entirely distinct SORA proceeding,because "risk level determinations are a consequence of convictions for sex offenses, but are nota part of the criminal action or its final adjudication." (People v Stevens, 91 NY2d 270,277 [1998].) The connection between the article 440 motion and the SORA hearing cited bydefendant is illusory; while the article 440 motion became tangentially involved in the SORAhearing when the People asserted that the making of the motion evinced defendant's failure toaccept responsibility for his crime, the court rejected that argument and assessed no points onthat basis. While it may have been the better practice for the court to have contacted defendant'sLegal Aid attorney, whose identity was known to the court, it does not follow that defendant isentitled to a new SORA hearing in the circumstances presented.
Since courts may take judicial notice of their own prior proceedings and records, includingexhibits, even sua sponte after trial (seeMusick v 330 Wythe Ave. Assoc., LLC, 41 AD3d 675, 676 [2007]; Rothstein v CityUniv. of N.Y., 194 AD2d 533, 534 [1993]), the SORA court properly considered thepresentence report, which was part of the prior proceedings before [*2]it. While defendant complains on appeal that he did not have theopportunity to rebut the information in the report, the record reflects that his counsel madereference to the report and had a suitable opportunity to be heard as to its contents.
We have considered and rejected defendant's remaining arguments, including his challengesto particular point assessments made by the court. Concur—Tom, J.P., Friedman,Gonzalez, McGuire and Acosta, JJ.