PEOPLE v. CONNOR (2026)

Order, Supreme Court, New York County (Neil Ross, J.), entered on or about February 23, 2022, which denied defendant's Correction Law § 168–o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.

The court providently exercised its discretion in declining to modify defendant's risk level three classification as the conditions have not changed since defendant's initial classification so as to warrant a modification thereof (see People v. Shader, 43 NY3d 129, 134 [2024] ).  The mitigating factors cited by defendant were largely present at the time of the initial adjudication (see id.).  To the extent they constitute changed circumstances, the court providently exercised its discretion in finding that they did not outweigh the factors warranting defendant's risk level three adjudication, including the seriousness of defendant's underlying conviction and his repeated sexual misconduct (see People v. Torres, 120 AD3d 1126, 1127 [1st Dept 2014], lv denied 24 NY3d 911 [2014]).

Defendant also committed the underlying offense while on parole for a prior sex crime conviction, indicating “a high risk of recidivism” (People v. Hampton, 220 AD3d 515, 516 [1st Dept 2023], lv denied 40 NY3d 910 [2024] ).  Additionally, although defendant had recently integrated back into society, not enough time has passed to show he has truly rehabilitated (see People v. Johns, 199 AD3d 529, 530 [1st Dept 2021] ).  As we held when defendant appealed his original risk level determination, he “fail[ed] to truly accept responsibility” (People v. O'Connor, 156 AD3d 442, 442 [1st Dept 2017], lv denied 31 NY3d 903 [2018]).

Defendant's current age (mid–70s) does not warrant a modification (see People v. Rodriguez, 145 AD3d 489, 490 [1st Dept 2016], lv denied 28 NY3d 916 [2017] ).  We note that the commission of his crimes relied significantly on trickery and verbal threats rather than physical strength.  Further, although defendant submitted a report from a forensic and addiction psychiatrist recommending modification, “we need not rely on a defendant's retained psychiatrist when determining a defendant's risk level” (People v. Romulus, 189 AD3d 553, 555 [1st Dept 2020], lv dismissed 36 NY3d 1082 [2021], lv denied 37 NY3d 910 [2021] ).  Finally, the Static–99R assessment “has only limited value because it fails to account for the seriousness of an offender's crime or the harm that could be inflicted in the event of reoffense” (Johns, 199 AD3d at 530).