People v Hosear

People v Hosear 2017 NY Slip Op 04364 Decided on June 1, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 1, 2017
Sweeny, J.P., Mazzarelli, Moskowitz, Manzanet-Daniels, Kapnick, JJ.
4146 9335/91

[*1]The People of the State of New York, Respondent,

v

Hollis Hosear, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Order, Supreme Court, New York County (Abraham L. Clott, J.), entered on or about October 30, 2015, which denied defendant's petition to modify his sex offender classification, unanimously affirmed, without costs.

Defendant failed to meet his burden under Correction Law § 168-o of presenting clear and convincing evidence that a downward modification of his risk level is warranted (see People v Torres, 120 AD3d 1126 [1st Dept 2014], lv denied 24 NY3d 911 [2014]). Defendant did not establish a prolonged abstinence from substance abuse, because all but a relatively short portion of the period he cites occurred while he was incarcerated (see People v Birch, 99 AD3d 422 [1st Dept 2012], lv denied 20 NY3d 854 [2012]. Defendant likewise failed to establish that his medical problems

render him unlikely to commit any kind of sex offenses (see e.g. People v Wragg, 41 AD3d 1273, 1274 [4th Dept 2007], lv denied 9 NY3d 809 [2007]). Among other things, even during hospital treatment defendant has recently engaged in lewd acts toward nurses.

The court providently exercised its discretion in declining to adjourn the proceeding, and the lack of an adjournment had no effect on the court's determination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 1, 2017

CLERK