Opinion
01-22-2015
The PEOPLE of the State of New York, Respondent, v. Larry JOHNSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
GONZALEZ, P.J., RENWICK, DeGRASSE, MANZANET–DANIELS, and GISCHE, JJ.
Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered September 30, 2013, which denied defendant's Correction Law § 168–o(2) petition to modify his sex offender classification from level three to level one, unanimously affirmed, without costs.
The court providently exercised its discretion in denying any modification (see People v. McFarland, 120 A.D.3d 1121, 992 N.Y.S.2d 414 [1st Dept.2014] ). Defendant cites his good behavior in the years since his release from prison on the underlying conviction, and the fact that he has reached his early 60s. However, these factors are outweighed by the extreme seriousness and nature of the underlying sex crime, described in detail in this Court's decision on defendant's appeal from that conviction ( 196 A.D.2d 449, 601 N.Y.S.2d 485 [1st Dept.1993], lv. denied 82 N.Y.2d 850, 606 N.Y.S.2d 602, 627 N.E.2d 524 [1993] ), as well as the other negative background factors that contributed to defendant's level three adjudication. Moreover, defendant's continuing, baseless refusal to accept responsibility is another factor weighing against any modification at this time.
We have considered and rejected defendant's procedural claims. Contrary to defendant's argument, the record reflects that in reaching its determination to deny the petition, the court considered all of defendant's submissions, in addition to the Board of Examiners' recommendation. Under the circumstances, there was no need to return the case to the Board for an updated recommendation.