Opinion
2017–13468
03-11-2020
PEOPLE of State of New York, Respondent, v. Todd ALVAREZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Daniel Rosenblum of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Daniel Rosenblum of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed, without costs or disbursements.
In 1983, the defendant pleaded guilty to, among other crimes, rape in the first degree (two counts) and assault in the second degree. After serving a term of imprisonment, the defendant was designated a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). In 2016, the defendant moved pursuant to Correction Law § 168–o(2) to modify his risk level classification from level three to level one. Following a hearing, the Supreme Court granted the defendant's motion to the extent of designating him a level two sex offender. The defendant appeals.
Correction Law § 168–o(2) permits a sex offender required to register pursuant to SORA to petition annually to modify his or her risk level classification (see People v. Lashway , 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; People v. Palladino , 137 A.D.3d 1098, 1099, 26 N.Y.S.3d 874 ). "The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence" ( People v. Lashway , 25 N.Y.3d at 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; see Correction Law § 168–o[2] ; People v. Hayden , 144 A.D.3d 1010, 40 N.Y.S.3d 917 ).
Here, the defendant failed to establish that he ever participated in any sex offender treatment program (see People v. Shaljamin , 164 A.D.3d 1169, 82 N.Y.S.3d 406 ; People v. McClinton , 153 A.D.3d 738, 740, 61 N.Y.S.3d 57 ). Furthermore, the record supports the Supreme Court's determination that the defendant failed to otherwise establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification to risk level one (see People v. Shaljamin , 164 A.D.3d at 1169, 82 N.Y.S.3d 406 ; People v. McClinton , 153 A.D.3d at 740, 61 N.Y.S.3d 57 ; People v. Hayden , 144 A.D.3d at 1010–1011, 40 N.Y.S.3d 917 ). Accordingly, we decline to disturb the court's determination.
DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.