PEOPLE v. KAMINSKI (2022)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Chemung County (Richard W. Rich Jr., J.), entered October 28, 2020, which reclassified defendant pursuant to Correction Law § 168–o (2) as a risk level two sex offender.

As relevant here, defendant was convicted in 1980 of rape in the first degree and burglary in the second degree and sentenced to a term of imprisonment (87 A.D.2d 724, 449 N.Y.S.2d 328 [3d Dept. 1982], mod 58 N.Y.2d 886, 460 N.Y.S.2d 495, 447 N.E.2d 43 [1983]).  Upon his release from incarceration, defendant was classified as a risk level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) – a classification that was upheld upon appeal (38 A.D.3d 1127, 833 N.Y.S.2d 266 [3d Dept. 2007], lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007]).  Thereafter, in 2017, defendant filed a petition pursuant to Correction Law § 168–o (2) seeking, among other things, to reduce his classification to a risk level one sex offender.  After conducting a hearing, but without requesting or reviewing an updated recommendation from the Board of Examiners of Sex Offenders, County Court denied defendant's request.  Upon appeal, this Court reversed, citing County Court's failure to comply with the procedural requirements of Correction Law § 168–o (4), and remitted this matter for further proceedings (184 A.D.3d 951, 124 N.Y.S.3d 269 [3d Dept. 2020]).  Following receipt of an updated recommendation from the Board, wherein the Board indicated that it would not be opposed to a risk level two classification, the People's concurring response and a hearing, County Court reclassified defendant as a risk level two sex offender.  Defendant appeals – contending that a further reduction to a risk level one classification is warranted.

We affirm.  A sex offender who is required to register under SORA may petition annually for modification of his or her risk level classification (see Correction Law § 168–o [2];  People v. Smilowitz, 178 A.D.3d 1187, 1187, 111 N.Y.S.3d 471 [3d Dept. 2019];  People v. Anthony, 171 A.D.3d 1412, 1413, 99 N.Y.S.3d 115 [3d Dept. 2019]).  The offender bears the burden of establishing – by clear and convincing evidence – that the requested modification is warranted, and, absent an abuse of discretion, the trial court's determination in this regard will not be disturbed (see People v. West, 201 A.D.3d 1242, 1243, 159 N.Y.S.3d 782 [3d Dept. 2022], lv denied 38 N.Y.3d 908, 2022 WL 1634374 [2022];  People v. Stein, 194 A.D.3d 1201, 1203, 148 N.Y.S.3d 522 [3d Dept. 2021], lv denied 37 N.Y.3d 913, 155 N.Y.S.3d 152, 177 N.E.3d 215 [2021]).  Notably, the modification petition does not afford the offender an opportunity to revisit the initial risk level classification under SORA (see People v. Stein, 194 A.D.3d at 1203, 148 N.Y.S.3d 522).  Rather, “[t]he relevant inquiry is whether conditions have changed, subsequent to the initial risk level classification, so as to warrant a modification thereof” (People v. West, 201 A.D.3d at 1243, 159 N.Y.S.3d 782;  see People v. Hartwick, 181 A.D.3d 1098, 1099, 119 N.Y.S.3d 776 [3d Dept. 2020]).

In support of his modification petition, defendant primarily cited his age at the time of the hearing (64 years old) and his generally poor health, as well as the fact that he was not subsequently charged with any additional sex crimes.  Noticeably absent from the record, however, is any medical evidence demonstrating that either defendant's age or his allegedly deteriorating health “renders him less likely to commit sex crimes in the future” (People v. Rivas, 185 A.D.3d 740, 741, 126 N.Y.S.3d 185 [2d Dept. 2020], lv denied 35 N.Y.3d 918, 133 N.Y.S.3d 551, 158 N.E.3d 568 [2020];  see People v. Charles, 162 A.D.3d 125, 140–141, 77 N.Y.S.3d 130 [2d Dept. 2018], lv denied 32 N.Y.3d 904, 2018 WL 4354724 [2018];  cf.  People v. Williams, 172 A.D.3d 1923, 1924, 97 N.Y.S.3d 918 [4th Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4267956 [2019];  compare People v. Stevens, 55 A.D.3d 892, 894, 867 N.Y.S.2d 108 [2d Dept. 2008]).  Additionally, defendant did not provide any proof that he successfully completed sex offender treatment or actively was engaged in counseling (see People v. West, 201 A.D.3d at 1243, 159 N.Y.S.3d 782;  People v. Anthony, 171 A.D.3d at 1414, 99 N.Y.S.3d 115).  Finally, although defendant did not perpetrate any subsequent sex crimes, his testimony at the hearing indeed evidenced a less than full appreciation of his conduct relative to the underlying offense, prompting County Court to genuinely question defendant's acceptance of responsibility and professed remorse.  Simply put, the foregoing proof fell short of establishing – by clear and convincing evidence – that further reduction of defendant's risk level classification to a risk level one sex offender was warranted.  Under these circumstances, County Court did not abuse its discretion in reclassifying defendant as a risk level two sex offender and, therefore, its determination will not be disturbed.

ORDERED that the order is affirmed, without costs.

Pritzker, J.

Egan Jr., J.P., Clark, Reynolds Fitzgerald and McShan, JJ., concur.