PEOPLE v. LAMAR (2025)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Larry J. Schwartz, J.), dated January 4, 2023, which, after a hearing, denied his petition pursuant to Correction Law § 168–o(2) to modify his risk level classification under Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In 1993, the defendant was convicted, inter alia, of rape in the first degree and sentenced to a period of incarceration.  After being granted an open release date by the New York State Department of Corrections and Community Supervision, in March 2016, the defendant was designated a level three sex offender under the Sex Offender Registration Act (Correction Law art 6–C;  hereinafter SORA).  In February 2021, the defendant filed a petition pursuant to Correction Law § 168–o(2) to modify his risk level classification from level three to level two.  Following a hearing, in an order dated January 4, 2023, the County Court denied the petition.  The defendant appeals.

“The objective of SORA is to evaluate a particular sex offender's risk of reoffense once he or she is released back into the community so that appropriate supervision and notification can be achieved” (People v. Davis, 179 A.D.3d 183, 186, 115 N.Y.S.3d 350).  “ ‘Correction Law § 168–o(2) permits a sex offender required to register under SORA to petition annually for modification of his [or her] risk level classification’ ” (People v. Holley, 231 A.D.3d 1064, 1065, 220 N.Y.S.3d 413, quoting People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847;  see People v. Wiggins, 180 A.D.3d 820, 821, 118 N.Y.S.3d 239).  “In such circumstance, ‘[t]he sex offender shall bear the burden of proving the facts supporting a requested modification by clear and convincing evidence’ ” (People v. Davis, 179 A.D.3d at 187, 115 N.Y.S.3d 350, quoting Correction Law § 168–o[2];  see People v. Springs, 162 A.D.3d 917, 75 N.Y.S.3d 261).  “ ‘[T]he relevant inquiry regarding Correction Law § 168–o(2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof’ ” (People v. Holley, 231 A.D.3d at 1065, 220 N.Y.S.3d 413, quoting People v. Davis, 179 A.D.3d at 187, 115 N.Y.S.3d 350).

Here, the record supports the County Court's conclusion that the defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his risk level classification from level three to level two (see People v. Johns, 199 A.D.3d 529, 154 N.Y.S.3d 437;  People v. DeSoto, 181 A.D.3d 835, 118 N.Y.S.3d 422;  People v. Springs, 162 A.D.3d at 918, 75 N.Y.S.3d 261;  cf.  People v. Clark, 207 A.D.3d 758, 759, 170 N.Y.S.3d 900).  Contrary to the defendant's contention, his inability to secure Sexual Assault Reform Act compliant housing—a condition of his level three classification (see Executive Law § 259–c[14])—has no bearing on his risk of reoffense and, concomitantly, his risk level classification (see People v. Davis, 179 A.D.3d at 186, 115 N.Y.S.3d 350).  Accordingly, the court properly denied the petition.

MILLER, J.P., DOWLING, TAYLOR and MCCORMACK, JJ., concur.