| People v Lesch |
| 2015 NY Slip Op 02539 [126 AD3d 1261] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Lesch, Appellant. |
Torrance L. Schmitz, Vestal, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J.P. Appeal from an order of the County Court of Broome County(Cawley, J.), entered March 3, 2014, which denied defendant's application pursuant toCorrection Law § 168-o (2) for, among other things, reclassification of hissex offender risk level status.
Defendant entered a guilty plea to sexual abuse in the first degree in satisfaction ofother charges, and was sentenced to three years in prison to be served concurrently to afederal prison term of 188 months for his conviction of possession of child pornography.In 2005, the Board of Examiners of Sex Offenders presumptively classified defendant asa risk level II sex offender under the Sex Offender Registration Act (seeCorrection Law art 6-C) but, on the Board's recommendation, County Court determinedthat aggravating factors warranted an upward departure, classified defendant as a risklevel three sex offender and designated him a sexually violent offender and a predicateoffender (see Correction Law § 168-a [7] [b], [c]). On appeal, thisCourt affirmed (People vLesch, 38 AD3d 1129 [2007], lv denied 8 NY3d 816 [2007]). Defendantthereafter applied for a modification to a risk level two status pursuant to Correction Law§ 168-o (2), which County Court denied following a hearing. Defendantappeals.[FN*]
[*2] Pursuant to Correction Law § 168-o (2),a sex offender who is required to register under the Sex Offender Registration Act mayseek a downward modification of his or her risk level status, and he or she bears theburden of establishing by clear and convincing evidence that the downward modificationis warranted (see People vLashway, 112 AD3d 1235, 1236 [2013], lv granted 22 NY3d 865[2014]; People v Wright, 78AD3d 1437, 1438 [2010]). Defendant, who remains confined in federal prison,argued that a modification was warranted based upon his positive gains whileincarcerated, including his completion of a sex offender program, computer certificateprograms and a GED, and his acceptance of responsibility. County Court took intoconsideration defendant's steps toward self-improvement as well as the Board's updatedrecommendation, and concluded that defendant had not demonstrated his ability to livecrime-free in the community nor submitted clear and convincing evidence that his risklevel should be reduced. Based upon our review of the record, including the initial riskclassification that previously considered defendant's guilty plea and asserted acceptanceof responsibility and his extensive criminal history, we do not find that the court abusedits discretion in denying defendant's application (see id.).
McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:Although County Courtmade a bench ruling after the January 31, 2014 hearing, the court's written order was notentered until March 3, 2014 and, thus, defendant's February 7, 2014 notice of appeal waspremature. In the interest of judicial economy, we will excuse the defect, treat the noticeof appeal as valid and address the merits (see CPLR 5520 [c]; People v Rogowski, 96 AD3d1113, 1113 n [2012]; People v Barrier, 58 AD3d 1086, 1087 n [2009], lvdenied 12 NY3d 707 [2009]; People v Scott, 35 AD3d 1015, 1016 [2006], lvdenied 8 NY3d 808 [2007]).