| People v Willingham |
| 2012 NY Slip Op 08712 [101 AD3d 979] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Willingham, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Deborah Wei on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Gerges, J.),dated November 4, 2004, which, after a hearing, designated him a level three sexually violentoffender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Kings County, for a new hearing and a new determination inaccordance herewith.
On December 2, 1991, the defendant was convicted, upon his plea of guilty, of robbery in thefirst degree (two counts) (see Penal Law § 160.15 [4]) and attempted rape in thefirst degree (see Penal Law §§ 110.00, 130.35 [1]; see also People vWillingham, 194 AD2d 703 [1993]).
On November 4, 2004, a hearing pursuant to the Sex Offender Registration Act (hereinafterSORA) was conducted. At the SORA hearing, the People argued that the defendant should beassessed a total of 125 points, including 30 points under risk factor 1 for being armed with adangerous instrument. The defendant's assigned counsel did not contest any of the points soughtto be assessed against the defendant. Based upon certain arguments made by the defendant on hisown behalf, the Supreme Court reduced the defendant's risk score to 115 points, which stillplaced the defendant within the range of a risk level three offender. The Supreme Courtdesignated the defendant a level three sexually violent offender, and the defendant appeals.
A sex offender facing risk level classification under SORA has a right to the effectiveassistance of counsel (see People vBowles, 89 AD3d 171, 173 [2011]; see also People v Benevento, 91 NY2d 708,713-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; Strickland vWashington, 466 US 668 [1984]).
The circumstances of this case, viewed in totality and as of the time of the representation,reveal that the defendant's assigned counsel did not provide meaningful representation at theSORA hearing (see People v Baldi, 54 NY2d at 147; cf. People v Bowles, 89 AD3d 171 [2011]; People v Reid, 59 AD3d 158,158-159 [2009]). Counsel did not controvert any of the points which the People sought to assessagainst the defendant. Indeed, counsel failed to litigate any aspect [*2]of the adjudication. Counsel remained silent throughout the entireSORA hearing, except for making two statements which showed an apparent misunderstandingas to how to challenge a SORA determination. Under the facts of this case, counsel's failure tocontest the assessment of 30 points under risk factor 1 was so egregious and prejudicial as todeprive the defendant of the effective assistance of counsel (cf. People v Benevento, 91NY2d at 714; People v Bowles, 89 AD3d at 181).
Accordingly, the order must be reversed and the matter remitted to the Supreme Court, KingsCounty, for a new risk level assessment hearing and a new determination. Rivera, J.P., Dillon,Roman and Cohen, JJ., concur.