Opinion
10-18-2017
PEOPLE of State of New York, respondent, v. Darrell SMITH, appellant.
Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Ozzi, J.), dated January 13, 2016, which denied his petition pursuant to Correction Law § 168–o(2) for a modification of his risk level classification under Correction Law article 6–C. ORDERED that the order is affirmed, without costs or disbursements.
Correction Law § 168–o(2) permits a sex offender required to register pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C) to petition annually for modification of his or her risk level classification (see People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; People v. McClinton, 153 A.D.3d 738, 739, 61 N.Y.S.3d 57 ; People v. Hayden, 144 A.D.3d 1010, 1010, 40 N.Y.S.3d 917 ; People v. Palladino, 137 A.D.3d 1098, 1099, 26 N.Y.S.3d 874 ; People v. Wyatt, 89 A.D.3d 112, 125, 931 N.Y.S.2d 85 ). "The sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence" ( Correction Law § 168–o[2] ; see People v. Lashway, 25 N.Y.3d at 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 ; People v. McClinton, 153 A.D.3d at 739, 61 N.Y.S.3d 57 ; People v. Hayden, 144 A.D.3d at 1010, 40 N.Y.S.3d 917; People v. Palladino, 137 A.D.3d at 1099, 27 N.Y.S.3d 686 ). Here, the defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification.
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendant's petition.
RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.