| People v Wright |
| 2010 NY Slip Op 08659 [78 AD3d 1437] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael Wright,Appellant. |
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Rose, J. Appeal from an order of the County Court of Schenectady County (Drago, J.), enteredMarch 26, 2010, which denied defendant's application pursuant to Correction Law §168-o (2) for reclassification of his sex offender risk level status.
Defendant pleaded guilty to attempted rape in the first degree and sodomy in the second degree.At the conclusion of his prison sentence, defendant was adjudicated to be a risk level three sexuallyviolent offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C).This adjudication was affirmed by this Court (People v Wright, 53 AD3d 963 [2008], lv denied 11 NY3d710 [2008]). Defendant thereafter applied for a modification to a risk level two status pursuant toCorrection Law § 168-o (2), which was denied by County Court. Defendant nowappeals.
We affirm. A sex offender required to register pursuant to the Sex Offender Registration Act mayseek a downward modification of his or her risk level status (see Correction Law §168-o [2]). The burden is on the sex offender to establish by clear and convincing evidencethat the requested modification is warranted (see Correction Law § 168-o [2]).Here, although County Court acknowledged that, since his designation as a risk level three offender,defendant has completed a mandated substance abuse program and has regularly attended [*2]substance abuse self-help meetings, has found seasonal employment witha catering business and has not violated probation, the court found that this evidence did not establishby clear and convincing evidence that defendant's risk level three sexually violent offender status shouldbe reduced. Based upon our review of the record, we are similarly unpersuaded and cannot concludethat County Court abused its discretion in denying defendant's application (see People v VanDover, 45 AD3d926, 926 [2007]).
We also reject defendant's contention that County Court deprived him of due process rights bydenying his request to submit certain documents as evidence in support of modification. The documentsthat were denied relate to his underlying crimes, and we note that when making a determinationregarding the appropriate sex offender risk level status, "[f]acts previously proven at trial or elicited atthe time of entry of a plea of guilty shall be deemed established by clear and convincing evidence andshall not be relitigated" (Correction Law § 168-n [3]; see People v Hood, 35 AD3d 1138, 1139 [2006], lv denied 8NY3d 808 [2007]). Accordingly, County Court properly excluded these documents.
Cardona, P.J., Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.