Opinion
8626 8627 Ind. 4411/02
03-07-2019
The PEOPLE of the State of New York, Respondent, v. Benjamin KELLY, 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 (M. Callagee O'Brien 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 (M. Callagee O'Brien of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Kahn, Gesmer, JJ.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about September 12, 2017, which denied defendant's Correction Law § 168–o(2) petition to modify his sex offender classification, unanimously affirmed, without costs. The court providently exercised its discretion in denying a modification of defendant's level two classification. Although defendant contends he has lived a law-abiding life for an extended period since his release, he had been free of parole supervision for only four years at the time of the petition. Defendant inadequately substantiated the other mitigating factors he cited. In any event, even if the mitigating factors were established, they are outweighed by the seriousness of the sex crime, which was committed against a child over an extended period (see e.g. People v. Lopez , 154 A.D.3d 531, 61 N.Y.S.3d 883 [1st Dept. 2017] ).