Opinion
06-01-2017
The PEOPLE of the State of New York, Respondent, v. Hollis HOSEAR, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Order, Supreme Court, New York County (Abraham L. Clott, J.), entered on or about October 30, 2015, which denied defendant's petition to modify his sex offender classification, unanimously affirmed, without costs.
Defendant failed to meet his burden under Correction Law § 168–o of presenting clear and convincing evidence that a downward modification of his risk level is warranted (see People v. Torres, 120 A.D.3d 1126, 992 N.Y.S.2d 419 [1st Dept.2014], lv. denied 24 N.Y.3d 911, 2014 WL 7152473 [2014] ). Defendant did not establish a prolonged abstinence from substance abuse, because all but a relatively short portion of the period he cites occurred while he was incarcerated (see People v. Birch, 99 A.D.3d 422, 952 N.Y.S.2d 10 [1st Dept.2012], lv. denied 20 N.Y.3d 854, 958 N.Y.S.2d 698, 982 N.E.2d 618 [2012] ). Defendant likewise failed to establish that his medical problems render him unlikely to commit any kind of sex offenses (see e.g. People v. Wragg, 41 A.D.3d 1273, 1274, 838 N.Y.S.2d 755 [4th Dept.2007], lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 [2007] ). Among other things, even during hospital treatment defendant has recently engaged in lewd acts toward nurses.
The court providently exercised its discretion in declining to adjourn the proceeding, and the lack of an adjournment had no effect on the court's determination.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, MANZANET–DANIELS, KAPNICK, JJ., concur.