Opinion
Ind. No. 4166/00 17090 Case No. 2013–02863
01-12-2023
The PEOPLE of the State of New York, Respondent, v. David GARCIA, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Catherine Marotta of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Catherine Marotta of counsel), for respondent.
Kern, J.P., Oing, Scarpulla, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about September 30, 2013, which denied defendant's Correction Law § 168 –0(2) petition to modify his level two sex offender classification to level one, unanimously affirmed, without costs.
The court providently exercised its discretion in denying the requested modification, for which defendant failed to establish the requisite basis by clear and convincing evidence (see generally People v. Lashway, 25 N.Y.3d 478, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ). The mitigating factors cited by defendant, including that he did not commit another sex crime since his release from prison on the underlying conviction, are outweighed by the seriousness of the underlying sex crime and other aggravating factors including a history of violent behavior and drug offenses since his release, and noncompliance with registration requirements (see e.g. People v. McCormick, 129 A.D.3d 644, 12 N.Y.S.3d 87 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 5972594 [2015] ).