People v Palladino

People v Palladino 2016 NY Slip Op 02066 Decided on March 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 March 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
MARK C. DILLON
ROBERT J. MILLER
BETSY BARROS, JJ.
2014-06219

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

v

Mauro Palladino, appellant.

Steven A. Feldman, Uniondale, NY, for appellant.

Thomas J. Spota, District Attorney, Riverhead, NY (Thomas Constant of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 30, 2014, which, after a hearing, denied his motion 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.

The defendant was convicted, after a jury trial, of two counts of sexual abuse in the first degree, sexual abuse in the second degree, and five counts of endangering the welfare of a child (see People v Palladino, 260 AD2d 506). After serving a term of imprisonment, the defendant was designated a level three sex offender pursuant to Correction Law article 6-C (see People v Palladino, 46 AD3d 864). The defendant subsequently moved, pursuant to Correction Law § 168-o(2), for a modification of his risk level classification from level three to level two. The County Court denied the defendant's motion, 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 article 6-C) to petition annually for modification of his risk level classification (see People v Lashway, 25 NY3d 478, 483; 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 Johnson, 124 AD3d 495, 496; People v McFarland, 120 AD3d 1121, 1121; People v Wright, 78 AD3d 1437, 1438; see generally People v Willis, 130 AD3d 1470, 1471; People v McCollum, 83 AD3d 1504, 1504-1505; People v Cullen, 79 AD3d 1677, 1677; People v Higgins, 55 AD3d 1303, 1303). Accordingly, the County Court properly denied his motion.

MASTRO, J.P., DILLON, MILLER and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court