| People v Hayden |
| 2016 NY Slip Op 07941 [144 AD3d 1010] |
| November 23, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Anthony Hayden, Appellant. |
Seymour W. James, Jr., New York, NY (Shane Tela of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Noquel A. Matos on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.), dated May 30, 2013, which, after a hearing, denied his application 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.
On May 31, 2000, the defendant was convicted of one count of rape in the third degree, and sentenced to a term of five years probation. At that time, the defendant was also designated a level three sex offender pursuant to Correction Law article 6-C. In 2012, the defendant made an application pursuant to Correction Law § 168-o (2) for a modification of his risk classification from level three to level one. The Supreme Court denied the defendant's application, and we affirm.
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 risk level classification (see People v Lashway, 25 NY3d 478, 483 [2015]; People v Palladino, 137 AD3d 1098 [2016]; People v Wyatt, 89 AD3d 112, 125 [2011]). "The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence" (People v Lashway, 25 NY3d at 483; see Correction Law § 168-o [2]; People v Wyatt, 89 AD3d at 125).
Here, the defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification (see People v Palladino, 137 AD3d at 1099; People v Johnson, 124 AD3d 495, 496 [2015]; People v McFarland, 120 AD3d 1121, 1121 [2014]; People v Wright, 78 AD3d 1437, 1438 [2010]). Accordingly, the Supreme Court properly denied his application. Leventhal, J.P., Miller, LaSalle and Brathwaite Nelson, JJ., concur.