| People v Abner |
| 2012 NY Slip Op 08903 [101 AD3d 1628] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JesseAbner, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from an order of the Erie County Court (Kenneth F. Case, J.), entered September 9,2011. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.),defendant contends that he received ineffective assistance of counsel because his attorney failedto challenge the requirement that he register as a sex offender. We reject that contention. At thetime of defendant's SORA hearing, any challenge to the registration requirement in the context ofa SORA proceeding was foreclosed by our decision in People v Carabello (309 AD2d1227, 1228 [2003]), where we held, consistent with the other Departments of the AppellateDivision, that a challenge to the registration requirement "constitutes a challenge to adetermination of an administrative agency" and must therefore be raised in a CPLR article 78proceeding. We note that defendant does not contend that his attorney was ineffective for failingto commence a CPLR article 78 proceeding on his behalf (cf. People v Reitano, 68 AD3d 954, 955 [2009], lv denied14 NY3d 708 [2010]). Approximately nine months after defendant's SORA hearing, theCourt of Appeals reversed the First Department's decision in People v Liden (79 AD3d 598 [2010], revd 19 NY3d 271[2012]) and thereby abrogated our ruling in Carabello, holding that "[a] determination bythe Board of Examiners of Sex Offenders that a person who committed an offense in anotherstate must register in New York is reviewable in a proceeding to determine the offender's risklevel" (19 NY3d at 273). In our view, defense counsel cannot be deemed ineffective for merelyfailing to anticipate the change in the law brought about by Liden (see generally People v Schrock, 99AD3d 1196, 1196 [2012]; Matter ofState of New York v Campany, 77 AD3d 92, 99 [2010], lv denied 15 NY3d 713[2010]).
We also reject defendant's contention that County Court failed to make adequate findings offact supporting its determination that defendant is a level three risk. The court's " 'oral findingsare supported by the record and sufficiently detailed to permit intelligent review; thus, [*2]remittal is not required despite defendant's accurate assertionregarding the court's failure to render an order setting forth the findings of fact . . .upon which its determination is based' " (People v Gosek, 98 AD3d 1309, 1310 [2012]).
We have reviewed defendant's remaining contentions and conclude that they lack merit.Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.