Ineffective assistance of counsel; Failure to investigate or speak to witnesses; Prejudice; Sentencing; 25-year mandatory minimum for CSC I involving an offender over 17 years old & a victim under 13; People v Benton; Sex Offenders Registration Act (SORA) requirement; Cruel or unusual punishment; People v Kardasz; Effect of defendant’s age (19); People v Taylor; People v Payne; Effect of the omission of the requirement from the judgment of sentence (JOS); Distinguishing People v Nunez; People v Rickerd (Unpub); Lifetime electronic monitoring (LEM) requirement; Unreasonable search claim; People v Hallak

The court held that trial counsel’s failure to investigate or speak to certain witnesses was deficient performance, but that it did not sufficiently prejudice defendant to undermine confidence in the trial’s outcome. It rejected his cruel or unusual punishment challenges to his 25-year mandatory minimum for his CSC I conviction and the lifetime SORA registration requirement. It also concluded that the omission of the SORA registration requirement from his JOS did “not necessitate his removal from the registry.” Finally, his cruel or unusual punishment and unreasonable search challenges to the lifetime LEM requirement also failed. He was 19 years old at the time of the crime; the victim was 12 years old. Defendant argued that his trial counsel’s performance was deficient due to the failure “to investigate the people who the victim said were at the house on the day of the offense: defendant’s mother, defendant’s father, the victim’s sister, defendant’s sister, and defendant’s sister’s boyfriend. Given that this case involved no physical evidence and rested on witness testimony, trial counsel’s failure to investigate or speak to these witnesses was deficient performance.” But the court determined that the “fact that these witnesses might have testified that they were not present on the night of the assault as the victim recalled they were, would not create a reasonable probability of a different outcome in light of the other evidence presented at trial. Finally, the victim’s father testified that he confronted defendant about the assault and that defendant admitted to it. None of the witnesses indicated at the Ginther hearing that they would have been able to provide testimony to impeach the victim’s father or to contradict the victim’s testimony about what occurred when she was alone with defendant.” As to the JOS omission issue, unlike in Nunez, defendant here “was informed of the SORA registration requirement before his sentencing and then registered.” Dealing with similar facts in Rickerd, the court found “Nunez did not require that the SORA requirement be voided because the trial court otherwise complied with” SORA. As it did there, the court remanded for the JOS to “be corrected to reflect the SORA registration requirement.” Affirmed and remanded.