People v. DiMartini

People v DiMartini (2018 NY Slip Op 04093)

People v DiMartini

2018 NY Slip Op 04093

Decided on June 7, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2018
Manzanet-Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.
6807 1271/99

Rosemary Herbert, Office of the Appellate Defender, New York (Lauren Stephens-Davidowitz of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 30, 2015, which denied in part defendant's Correction Law § 168-o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.

Assuming that the order is appealable (see People v Tilley, 138 AD3d 547 [1st Dept 2016]), we find that the court providently exercised its discretion when it reduced defendant's level three classification to level two but declined to reduce it further. Defendant failed to establish by clear and convincing evidence a basis for a modification to level one (see People v Lashway, 25 NY3d 478 [2015]; People v Lopez, 154 AD3d 531 [1st Dept 2017]). The court's grant of only partial relief is supported by the totality of mitigating and aggravating factors.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2018

CLERK