Opinion
535541
06-01-2023
The PEOPLE of the State of New York, Respondent, v. Timothy SHADER, Appellant.
Pappalardo & Pappalardo, LLP, White Plains (Jill K. Sanders of counsel), for appellant. P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.
Pappalardo & Pappalardo, LLP, White Plains (Jill K. Sanders of counsel), for appellant.
P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from an amended order of the County Court of Albany County (Andra Ackerman, J.), entered April 25, 2022, which reclassified defendant pursuant to Correction Law § 168–o (2) as a risk level two sex offender pursuant to the Sex Offender Registration Act.
In 1977, defendant was convicted of rape in the first degree, sodomy in the first degree, assault in the second degree and burglary in the second degree and was sentenced to 8? to 30 years in prison. Upon his release from incarceration in 1998, defendant was classified as a risk level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]). In 2021, defendant filed a petition seeking, among other things, to be reclassified as a risk level one sex offender. Following a hearing, County Court reclassified defendant as a risk level two sex offender. Defendant appeals.
In 2003, Penal Law § 130.50 was amended and sodomy in the first degree was replaced and is now known as criminal sexual act in the first degree (see Penal Law § 130.50, as amended by L 2003, ch 264, § 20).
We affirm. " Correction Law § 168–o (2) permits a sex offender required to register under SORA to petition annually for modification of his [or her] risk level classification" ( People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ). "The burden is on the sex offender to establish by clear and convincing evidence that the requested modification is warranted, and the trial court's determination will not be disturbed absent an abuse of discretion" ( People v. Smilowitz, 178 A.D.3d 1187, 1187, 111 N.Y.S.3d 471 [3d Dept. 2019] [internal quotation marks and citations omitted]; see People v. Kaminski, 208 A.D.3d 1395, 1396, 173 N.Y.S.3d 683 [3d Dept. 2022], lv denied 39 N.Y.3d 905, 2022 WL 17684525 [2022] ). "In this regard, the relevant inquiry is whether, subsequent to the initial risk level classification, conditions have changed so as to warrant a modification thereof" ( People v. Hartwick, 181 A.D.3d 1098, 1099, 119 N.Y.S.3d 776 [3d Dept. 2020] [citations omitted]; see People v. West, 201 A.D.3d 1242, 1243, 159 N.Y.S.3d 782 [3d Dept. 2022], lv denied 38 N.Y.3d 908, 2022 WL 1634374 [2022] ).
In support of his request for reclassification, defendant cited to the fact that he has not committed any additional sex crimes since his release in 1998, that he has completed sex offender treatment, has earned an Associate's degree, has been steadily employed throughout the time of his release, his age (66 years old at the time of his petition) and that he is married and has a stable home life. Defendant also relied upon a psychologist's 2020 evaluation in which she concluded that defendant's "risk for sexual recidivism is low." County Court credited this evidence in reclassifying defendant as a risk level two sex offender. In rejecting defendant's request to be reclassified as a risk level one sex offender, however, the court noted that in 2003, while on probation, defendant was arrested and convicted of the misdemeanor charges of attempted auto stripping in the third degree and attempted possession of burglary tools and was found to be in violation of his probation. Based upon these crimes, defendant's history of sex offenses prior to the 1977 crimes and the seriousness of the 1977 conviction, the court concluded that defendant had not demonstrated by clear and convincing evidence that a reclassification to a risk level one sex offender was warranted. Upon review, no abuse of discretion exists in the court's reclassification of defendant to a risk level two sex offender (see People v. Hartwick, 181 A.D.3d at 1100, 119 N.Y.S.3d 776 ; People v. Smilowitz, 178 A.D.3d at 1189, 111 N.Y.S.3d 471 ).
Although the Board of Examiners of Sex Offenders concluded that it "would not oppose" a reclassification of defendant to a risk level one sex offender, County Court is "not bound by the Board's recommendation" (People v. Smilowitz, 178 A.D.3d at 1189, 111 N.Y.S.3d 471 [internal quotation marks and citation omitted]).
Garry, P.J., Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the amended order is affirmed, without costs.