Crimes - Right to Counsel - Effective Representation - Failure to Request Downward Departure

Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated November 9, 2021, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Following a hearing, the Supreme Court designated the defendant a level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6-C). The defendant appeals.

"A defendant has a right to the effective assistance of counsel in a SORA proceeding" (People v Bertrand, 194 AD3d 1081, 1081 [2021]). "Under the federal ineffective assistance of counsel standard, the defendant must satisfy a two-pronged test in order to establish that counsel was ineffective: (1) 'that counsel's representation fell below an objective standard of reasonableness,' and (2) 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' " (People v Wolbert, 207 AD3d 483, 485 [2022], quoting Strickland v Washington, 466 US 668, 688, 694 [1984]; see People v Georgiou, 38 AD3d 155, 160 [2007]). "Under the New York standard, the first prong is identical to its federal counterpart, but the second prong is based on the fairness of the process as a whole rather than the impact of counsel's errors on the outcome of the case" (People v Wolbert, 207 AD3d at 485; see People v Georgiou, 38 AD3d at 160-161). Nonetheless, even under the state standard, defense counsel is not ineffective for failing to advance an argument that had little to no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]).

Here, although defense counsel arguably should have made an application for a downward departure from the defendant's presumptive SORA risk level, counsel's "omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel" (People v Carman, 194 AD3d 760, 763 [2021], affd 38 NY3d 972 [2022]; see People v Sprosta, 221 AD3d 836, 838 [2023]; cf. People v Bertrand, 194 AD3d at 1081-1082). Under the circumstances, a downward departure application would have had little or no chance of success, and there is no reasonable probability that had counsel requested a downward departure, the result of the proceeding would have been different (see People v Sprosta, 221 AD3d at 838; People v Carman, 194 AD3d at 763).

Accordingly, the Supreme Court properly designated the defendant a level two sex [*2]offender. Dillon, J.P., Christopher, Wan and Landicino, JJ., concur.