Opinion
735 KA 18-01761
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Robert T. BENTLEY, Defendant-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying his petition pursuant to Correction Law § 168-o (2) seeking to modify the prior determination that he is a level three risk pursuant to the Sex Offender Registration Act (SORA) (§ 168 et seq .). We affirm. As the party seeking a modification of his SORA risk level determination, defendant had the "burden of proving the facts supporting the requested modification by clear and convincing evidence" ( Correction Law § 168-o [2] ; see People v. Williams , 170 A.D.3d 1531, 1531, 94 N.Y.S.3d 490 [4th Dept. 2019] ; People v. Cullen , 79 A.D.3d 1677, 1677, 917 N.Y.S.2d 447 [4th Dept. 2010], lv denied 16 N.Y.3d 709, 2011 WL 1237556 [2011] ). Contrary to defendant's contention, he failed to meet that burden (see People v. Charles , 162 A.D.3d 125, 140, 77 N.Y.S.3d 130 [2d Dept. 2018], lv denied 32 N.Y.3d 904, 2018 WL 4354724 [2018] ; People v. Johnson , 124 A.D.3d 495, 496, 1 N.Y.S.3d 103 [1st Dept. 2015] ; see generally People v. Lashway , 25 N.Y.3d 478, 484, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ). It is well settled that "the relevant inquiry regarding Correction Law § 168-o (2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof" ( People v. Anthony , 171 A.D.3d 1412, 1413, 99 N.Y.S.3d 115 [3d Dept. 2019] ). Here, the evidence at the hearing on the petition to modify the SORA risk level determination failed to establish that defendant completed sex offender treatment. Additionally, the evidence demonstrated that defendant has not addressed the mental health issues from which he suffers, and that he was subsequently convicted of several crimes arising from his plan to kidnap and rape his probation officer. Thus, defendant failed to submit clear and convincing evidence of facts supporting the requested modification (see generally People v. Austin , 182 A.D.3d 937, 938-939, 122 N.Y.S.3d 191 [3d Dept. 2020] ; Anthony , 171 A.D.3d at 1413, 99 N.Y.S.3d 115 ).