People v Smith

People v Smith 2017 NY Slip Op 07289 Decided on October 18, 2017 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 October 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
LINDA CHRISTOPHER, JJ.
2016-01409

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

v

Darrell Smith, appellant.

Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Ozzi, J.), dated January 13, 2016, which denied his petition 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.

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 or her risk level classification (see People v Lashway, 25 NY3d 478, 483; People v McClinton, 153 AD3d 738, 739; People v Hayden, 144 AD3d 1010, 1010; People v Palladino, 137 AD3d 1098, 1099; People v Wyatt, 89 AD3d 112, 125). "The sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence" (Correction Law § 168-o[2]; see People v Lashway, 25 NY3d at 483; People v McClinton, 153 AD3d at 739; People v Hayden, 144 AD3d at 1010; People v Palladino, 137 AD3d at 1099). Here, the defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification.

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly denied the defendant's petition.

RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court