THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARK BERRY DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order granting in part his petition pursuant to Correction Law § 168-o (2) seeking to modify the prior determination that he is a level three risk pursuant to the Sex Offender Registration Act (SORA) (§ 168 et seq.). Supreme Court modified defendant's risk level to level two but denied further modification to level one. We affirm.

Correction Law § 168-o (2) permits a sex offender required to register under SORA to petition annually for modification of their risk level classification (see People v Lashway, 25 NY3d 478, 483 [2015]). The sex offender has the burden of proving the facts supporting the requested modification by clear and convincing evidence (see § 168-o [2]; Lashway, 25 NY3d at 483; People v Diaz, 242 AD3d 1567, 1568 [4th Dept 2025]). When determining whether a modification is warranted, the court should consider the recommendation from the Board of Examiners of Sex Offenders, the nature of the sex offender's crime, and any other “relevant materials and evidence” submitted by the parties, including any evidence of rehabilitation or other changed circumstances (§ 168-o [4]; see People v Shader, 43 NY3d 129, 134 [2024]). “The court must undertake a thorough analysis of a [sex offender's] likelihood of reoffending and the danger the [sex offender] poses to the community in which [they] reside[ ] in the event of a reduced risk level classification” (Shader, 43 NY3d at 134 [internal quotation marks omitted]). “The relevant inquiry is whether the [sex offender] has proved by clear and convincing evidence that conditions have changed, subsequent to the initial risk level classification, so as to warrant a modification thereof” (id. [internal quotation marks omitted]; see Diaz, 242 AD3d at 1568).

Here, defendant presented evidence of his rehabilitation and changed circumstances, including that he had not reoffended since being released from prison, he was compliant with SORA requirements, he was largely compliant with his terms of parole, he had successfully engaged in sex offender counseling, he had stable employment and housing, he was participating in mental health counseling, and an evaluation found that he was at a low risk of reoffending. Those changed circumstances warranted a reduction from defendant's risk level classification from level three to level two.

Defendant, however, failed to meet his burden of demonstrating by clear and convincing evidence that a modification of his risk level to level one is warranted. In denying the request for a further modification, the court properly considered the nature of the sex offenses of which defendant was convicted and defendant's other criminal history (see Shader, 43 NY3d at 134-135; People v Ross, 240 AD3d 1374, 1375 [4th Dept 2025], lv denied 44 NY3d 910 [2026]). The court, in particular, also considered that defendant had been released from prison less than two years prior to the filing of his petition for modification, and he was still under parole supervision (see People v Booker, 240 AD3d 620, 622 [2d Dept 2025], lv denied 44 NY3d 908 [2025]; People v Johns, 199 AD3d 529, 530 [1st Dept 2021]; People v Greene, 177 AD3d 536, 537 [1st Dept 2019], lv denied 35 NY3d 903 [2020]).

We therefore conclude that the court did not abuse its discretion in modifying defendant's risk level classification from level three to level two but denying further modification to level one, and we decline to exercise our discretion to grant any further modification of defendant's risk level classification (see generally Shader, 43 NY3d at 137).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court