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