SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1260
KA 11-01996
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JESSE ABNER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
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 Offender Registration 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 to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that he received
ineffective assistance of counsel because his attorney failed to
challenge the requirement that he register as a sex offender. We
reject that contention. At the time of defendant’s SORA hearing, any
challenge to the registration requirement in the context of a SORA
proceeding was foreclosed by our decision in People v Carabello (309
AD2d 1227, 1228), where we held, consistent with the other Departments
of the Appellate Division, that a challenge to the registration
requirement “constitutes a challenge to a determination of an
administrative agency” and must therefore be raised in a CPLR article
78 proceeding. We note that defendant does not contend that his
attorney was ineffective for failing to commence a CPLR article 78
proceeding on his behalf (cf. People v Reitano, 68 AD3d 954, 955, lv
denied 14 NY3d 708). Approximately nine months after defendant’s SORA
hearing, the Court of Appeals reversed the First Department’s decision
in People v Liden (79 AD3d 598, revd 19 NY3d 271) and thereby
abrogated our ruling in Carabello, holding that “[a] determination by
the Board of Examiners of Sex Offenders that a person who committed an
offense in another state must register in New York is reviewable in a
proceeding to determine the offender’s risk level” (19 NY3d at 273).
In our view, defense counsel cannot be deemed ineffective for merely
failing to anticipate the change in the law brought about by Liden
(see generally People v Schrock, 99 AD3d 1196, 1196; Matter of State
-2- 1260
KA 11-01996
of New York v Campany, 77 AD3d 92, 99, lv denied 15 NY3d 713).
We also reject defendant’s contention that County Court failed to
make adequate findings of fact supporting its determination that
defendant is a level three risk. The court’s “ ‘oral findings are
supported by the record and sufficiently detailed to permit
intelligent review; thus, remittal is not required despite defendant’s
accurate assertion regarding 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).
We have reviewed defendant’s remaining contentions and conclude
that they lack merit.
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court