People v. Greene

People v Greene (2019 NY Slip Op 08493)

People v Greene

2019 NY Slip Op 08493

Decided on November 21, 2019

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 November 21, 2019
Richter, J.P., Manzanet-Daniels, Gische, Webber, Kern, JJ.
10408 5665/99

Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia of counsel), for respondent.

Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about November 6, 2017, which denied defendant's Correction Law § 168-o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.

Initially, we conclude that the order is appealable as of right (CPLR 5701[a]; People v Shaljamin, 164 AD3d 1169 [1st Dept 2018]).

The court providently exercised its discretion in denying a modification of defendant's level three classification, because defendant failed to establish by clear and convincing evidence the requisite basis (see People v Lashway, 25 NY3d 478 [2015]; People v Lopez, 154 AD3d 531, 61 NYS3d 883 [1st Dept 2017]). Although defendant adequately documented the mitigating factors he cited, the court appropriately weighed the positive strides that defendant had made against the relatively short time he had been without supervision. The court's finding that insufficient time had passed since his release to reliably predict his risk of re-offense is supported by the record.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2019

DEPUTY CLERK