Summary
In People v. Willis, 130 A.D.3d 1470, 12 N.Y.S.3d 758, the defendant commenced a proceeding pursuant to Correction Law § 168–o in City Court.
Summary of this case from People v. CharlesOpinion
790 KA 14-02030
07-02-2015
The PEOPLE of the State of New York, Respondent, v. Nathaniel WILLIS, Defendant–Appellant.
Leanne LAPP, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Christopher Eaggleston of Counsel), for Respondent.
Leanne LAPP, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Christopher Eaggleston of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: Defendant commenced this proceeding in Canandaigua City Court, seeking, pursuant to Correction Law § 168–o, a downward modification of his previously-imposed classification as a level three risk pursuant to the Sex Offender Registration Act ( [SORA] § 168 et seq. ). The court denied the petition and defendant appealed from that order in County Court. He now appeals from an order of County Court that affirmed City Court's order.
Initially, we note that “[a]n appeal may be taken to the appellate division as of right from an order of a county court ... which determines an appeal from a judgment of a lower court” (CPLR 5703[b] ), and here County Court determined the appeal from an order of City Court, not a judgment. Nevertheless, “where[, as here,] the rights of the parties are for all practical purposes finally determined,” we conclude that this appeal as of right pursuant to CPLR 5703(b) is properly before us (Highlands Ins. Co. v. Maddena Constr. Co., 109 A.D.2d 1071, 1072, 487 N.Y.S.2d 215 ; see Hayes v. City of Amsterdam, 2 A.D.3d 1139, 1140, 770 N.Y.S.2d 138 ; Pigler v. Adam, Meldrum & Anderson Co., 195 A.D.2d 1011, 1011, 602 N.Y.S.2d 572 ).
Defendant failed to preserve for our review his contention that City Court erred in requiring that he establish his entitlement to a reduction of his risk level by clear and convincing evidence (see generally People v. Akinpelu, 126 A.D.3d 1451, 1452, 6 N.Y.S.3d 347 ; People v. Shepard, 103 A.D.3d 1224, 1224, 958 N.Y.S.2d 858, lv. denied 21 N.Y.3d 856, 2013 WL 2350362 ). In any event, that contention is without merit because, in a petition for a modification of a SORA risk level pursuant to section 168–o (2), defendant “bears the burden of proving the facts supporting a requested modification by clear and convincing evidence” (People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ; see People v. David W., 95 N.Y.2d 130, 140, 711 N.Y.S.2d 134, 733 N.E.2d 206 ; People v. Grossman, 85 A.D.3d 1632, 1632, 924 N.Y.S.2d 909, lv. denied 17 N.Y.3d 708, 2011 WL 4030054 ), and here defendant failed to meet that burden (see People v. McCollum, 83 A.D.3d 1504, 1504–1505, 921 N.Y.S.2d 576 ; People v. Cullen, 79 A.D.3d 1677, 1677, 917 N.Y.S.2d 447, lv. denied 16 N.Y.3d 709, 2011 WL 1237556 ).
Finally, we reject defendant's contention that City Court failed to hold a hearing as required by Correction Law § 168–o (4). To the contrary, that court conducted a hearing at which it admitted all evidence submitted by defendant. Defendant failed to preserve for our review his further contention that a more extensive hearing was required (see generally Cullen, 79 A.D.3d at 1677, 917 N.Y.S.2d 447 ). It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.