Opinion
11-23-2016
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.
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.
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 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; People v. Palladino, 137 A.D.3d 1098, 26 N.Y.S.3d 874 ; People v. Wyatt, 89 A.D.3d 112, 125, 931 N.Y.S.2d 85 ). “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. Wyatt, 89 A.D.3d at 125, 931 N.Y.S.2d 85 ).
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 A.D.3d at 1099, 26 N.Y.S.3d 874; People v. Johnson, 124 A.D.3d 495, 496, 1 N.Y.S.3d 103 ; People v. McFarland, 120 A.D.3d 1121, 1121, 992 N.Y.S.2d 414 ; People v. Wright, 78 A.D.3d 1437, 1438, 911 N.Y.S.2d 513 ). Accordingly, the Supreme Court properly denied his application.
LEVENTHAL, J.P., MILLER, LaSALLE and BRATHWAITE NELSON, JJ., concur.