People v Hayden

People v Hayden 2016 NY Slip Op 07941 Decided on November 23, 2016 Appellate Division, Second 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 November 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
ROBERT J. MILLER
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2013-06161

[*1]People of State of New York, respondent,

v

Anthony Hayden, appellant.

Seymour W. James, Jr., New York, NY (Shane Tela of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Noquel A. Matos on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.) dated May 30, 2013, which, after a hearing, denied his application pursuant to Correction Law § 168-o(2) for a modification of his risk level classification under Correction Law article 6-C.

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

On May 31, 2000, the defendant was convicted of one count of rape in the third degree, and sentenced to a term of five years probation. At that time, the defendant was also designated a level three sex offender pursuant to Correction Law article 6-C. In 2012, the defendant made an application pursuant to Correction Law § 168-o(2) for a modification of his risk classification from level three to level one. The Supreme Court denied the defendant's application, and we affirm.

Correction Law § 168-o(2) permits a sex offender required to register pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) to petition annually for modification of his risk level classification (see People v Lashway, 25 NY3d 478, 483; People v Palladino, 137 AD3d 1098; People v Wyatt, 89 AD3d 112, 125). "The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence" (People v Lashway, 25 NY3d at 483; see Correction Law § 168-o[2]; People v Wyatt, 89 AD3d at 125).

Here, the defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification (see People v Palladino, 137 AD3d at 1099; People v Johnson, 124 AD3d 495, 496; People v McFarland, 120 AD3d 1121, 1121; People v Wright, 78 AD3d 1437, 1438). Accordingly, the Supreme Court properly denied his application.

LEVENTHAL, J.P., MILLER, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court