In People v. Griffith (4th Dept. 11/9/2018), the Fourth Department found that the defendant had been denied effective assistance of counsel when his attorney refused to assist him in appealing his denied petition for a downward modification under the Sex Offender Registration Act (SORA). The defendant claimed in his petition that he was entitled to a downward modification of his previously-imposed classification as a level three risk pursuant to Correction Law §168-o(2). The court initially found that the defendant’s claim on appeal arises under CPLR 5701 not under Correction Law §168-o(2).
When the defendant moved forward with his petition, his assigned counsel wrote a letter to the court indicating that the petition was meritless and that he would not support the petition. Additionally, he advised the defendant to withdraw the petition so that defendant would not delay his right to file a new modification petition in two years. But the defendant’s counsel was wrong. Under Correction Law §168-o(2) a defendant may file a petition “no more than once annually.”
The Court concluded that by refusing to support the defendant’s petition and giving him incorrect advice, there was ineffective assistance of counsel because the defendant’s attorney essentially became a witness against the defendant and took a position adverse to him. (MK/LC)