People v Mercado

2014 NY Slip Op 03902 [117 AD3d 1367]

May 29, 2014

Appellate Division, Third Department

As corrected through Wednesday, July 2, 2014

[*1]

The People of the State of New York, Respondent, vRobert Mercado, Appellant.

Law Office of Zachary Margulis-Ohnuma, New York City (ZacharyMargulis-Ohnuma of counsel), for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel),for respondent.

Rose, J. Appeal from an order of the County Court of Washington County (Hall Jr.,J.), entered July 17, 2013, which denied defendant's application pursuant to CorrectionLaw § 168-o (2) for reclassification of his sex offender risk levelstatus.

Defendant pleaded guilty to rape in the first degree and was sentenced to81/3 to 25 years in prison. As his release to parole supervision neared in2011, defendant was adjudicated to be a risk level three sexually violent offenderpursuant to the Sex Offender Registration Act (see Correction Law art 6-C).Approximately two years later, he petitioned for a downward modification in his risklevel status pursuant to Correction Law § 168-o (2). County Courtdenied the application, and defendant now appeals.

We affirm. Defendant, as a sex offender seeking a downward modification of his risklevel classification, bore the burden of demonstrating by clear and convincing evidencethat the proposed modification was warranted (see Correction Law§ 168-o [2]; People v David W., 95 NY2d 130, 140 [2000];People v Lashway, 112AD3d 1235, 1236 [2013], lv granted 22 NY3d 865 [2014]). County Courtacknowledged here that defendant has taken significant strides since his release fromprison, including having completed two courses of sex offender treatment andcommencing a third, establishing a stable residence, finding employment as a mechanic,[*2]becoming romantically involved with an adult andcomplying with the terms of his parole. Moreover, defendant submitted a recentpsychiatric and risk assessment finding that his "risk of recidivism is remote." The Boardof Examiners of Sex Offenders nevertheless recommended that his risk level not bemodified, pointing out that he had been in the community for a relatively short period oftime and that his positive adjustment to release may be attributable to the externalcontrols on his behavior imposed by parole supervision. County Court agreed with theBoard and denied defendant's application, although it encouraged him to continueparticipating in sex offender treatment and to reapply after his parole supervision ended.Inasmuch as our review of the record does not disclose that County Court abused itsdiscretion in doing so, we will not disturb its decision (see People v Lashway,112 AD3d at 1236-1237; Peoplev Wright, 78 AD3d 1437, 1438 [2010]).

Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the order isaffirmed, without costs.