People of State of New York, respondent, v. Eric Vancura, appellant. (2012)

Submitted—April 5, 2012

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), dated March 16, 2011, which, after a hearing, granted the petition of the People of the State of New York pursuant to Correction Law § 168–o (3) for an upward modification of his risk level classification, to the extent of designating him a level two sex offender pursuant to Correction Law article 6–C.

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

The defendant was convicted of possessing an obscene sexual performance of a child and sentenced to time served plus 10 years of probation.   The defendant initially was designated a level one sex offender.   When the defendant violated the terms of his probation, the People of the State of New York petitioned pursuant to Correction Law § 168–o (3) for an upward modification of his risk level classification.

Contrary to the defendant's contention, the proof offered at the hearing, showing that he failed to meaningfully participate in and complete sex offender treatment and denied that he had victimized the children depicted in the pornographic images he possessed, provided clear and convincing evidence that he was at an increased risk to re-offend (see Correction Law § 168–o;  see generally People v. Johnson, 11 NY3d 416, 420).   Accordingly, the County Court properly granted the petition of the People of the State of New York for an upward departure of his risk level classification to the extent of modifying his risk level classification from a level one to a level two sex offender (see People v. Turpeau, 68 AD3d 1083).

In light of our determination, we need not reach the parties' remaining contentions.

DILLON, J.P., ENG, BELEN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court