Opinion
815 KA 21-01131
11-10-2022
The PEOPLE of the State of New York, Respondent, v. James ROSS, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, 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 (§ 168 et seq. ). We affirm. Contrary to defendant's contention, he failed to meet his " ‘burden of proving the facts supporting the requested modification by clear and convincing evidence’ " ( People v. Higgins , 55 A.D.3d 1303, 1303, 864 N.Y.S.2d 356 [4th Dept. 2008], quoting § 168-o [2] ; see People v. Bentley , 186 A.D.3d 1135, 1136, 127 N.Y.S.3d 367 [4th Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393230 [2020] ; People v. Anthony , 171 A.D.3d 1412, 1413-1414, 99 N.Y.S.3d 115 [3d Dept. 2019] ). Here, the evidence at the hearing on the petition failed to establish that defendant completed sex offender treatment. In addition, the evidence demonstrated that after defendant was initially adjudicated a level three risk, defendant was convicted of murder based on his attack on his ex-girlfriend in front of her young children. We conclude that defendant failed to submit clear and convincing evidence that conditions changed subsequent to the initial risk level determination warranting the requested modification (see Bentley , 186 A.D.3d at 1136, 127 N.Y.S.3d 367 ; see generally People v. Knox , 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ; People v. Perry , 174 A.D.3d 1234, 1236, 103 N.Y.S.3d 202 [3d Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318359 [2019] ).
We have considered defendant's remaining contention, and we conclude that it does not require modification or reversal of the order.