People v Garcia

People v Garcia 2016 NY Slip Op 08954 Decided on December 29, 2016 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 December 29, 2016
Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels, Feinman, JJ.
2574 11639/87

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

v

Jose Garcia, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Shane Tela of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.

Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on August 27, 2014, which denied defendant's petition to modify his sex offender classification, unanimously affirmed.

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]). The factors cited by defendant are outweighed by the seriousness of the underlying sex crime against a child,

defendant's continuing unlawful conduct after being released from prison on that conviction, and his failure to accept responsibility.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 2016

CLERK