| People v Cullen |
| 2010 NY Slip Op 09680 [79 AD3d 1677] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Cullen,Also Known as John McCarthy, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered October27, 2009. The order denied the petition of defendant for a modification of his Sex OffenderRegistration Act classification.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying his petition pursuant to CorrectionLaw § 168-o (2) seeking to modify the determination that he is a level three riskpursuant to the Sex Offender Registration Act (SORA) (Correction Law § 168 etseq.). We note that many of the factors upon which defendant relies in support of hismodification petition were previously considered by this Court in his prior appeal from the orderdetermining that he is a level three risk (People v Cullen, 60 AD3d 1466 [2009], lv denied 12 NY3d712 [2009]). With respect to any additional factors set forth by defendant in support of hismodification petition, we conclude that defendant failed to meet his "burden of proving the factssupporting the requested modification by clear and convincing evidence" (§ 168-o[2]; see People v Higgins, 55 AD3d1303 [2008]).
The further contention of defendant that County Court erred in assessing 20 points againsthim under the risk factor for his relationship with the victims is unpreserved for our reviewinasmuch as defendant failed to raise that contention in either of his prior appeals or in support ofhis modification petition (see generallyPeople v Smith, 17 AD3d 1045 [2005], lv denied 5 NY3d 705 [2005]).Defendant also failed to preserve for our review his contention that he is not subject to SORA(see People v Windham, 10 NY3d801 [2008]). In any event, those contentions are without merit. Present—Smith, J.P.,Centra, Fahey, Peradotto and Pine, JJ.