| People v Reyes |
| 2010 NY Slip Op 03036 [72 AD3d 513] |
| April 15, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseReyes, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Order, Supreme Court, New York County (James A. Yates, J.), entered on or aboutSeptember 26, 2008, which adjudicated defendant a level three sex offender and sexually violentoffender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimouslyaffirmed, without costs.
Assuming, without deciding, that the state and federal standards for effective assistance at acriminal trial apply to a sex offender adjudication (see People v Reid, 59 AD3d 158 [2009], lv denied 12NY3d 708 [2009]), we conclude that defendant received effective assistance (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). In the underlying criminal case, defendant had been indicted for multiple sexcrimes against two children, but only pleaded guilty to one count of first-degree sexual abuse. Inadjudicating him a level three offender, the court, relying on the victims' grand jury testimony,assessed points relating to the counts to which defendant did not plead guilty. On appeal,defendant faults his counsel for failing to use, or affirmatively asking the hearing court todisregard, material that could have impeached the victims' grand jury testimony, includingdocuments prepared during an investigation by the Administration for Children's Services.However, counsel could have reasonably concluded that, on the whole, the impeachmentmaterial was more damaging than helpful. In particular, the inconsistencies, especially as todates of events, could be readily explained, and the materials generally supported the victims'allegations. [*2]In any event, regardless of whether counselshould have used these documents, his failure to do so could not have affected the sex offenderadjudication or deprived defendant of a fair hearing. Concur—Andrias, J.P., McGuire,Moskowitz, Acosta and DeGrasse, JJ.