THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN CULLEN ALSO KNOWN AS JOHN MCCARTHY DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN CULLEN, ALSO KNOWN AS JOHN MCCARTHY, DEFENDANT-APPELLANT.

KA 10-00180

Decided: December 30, 2010

PRESENT:  SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ. ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order denying his petition pursuant to Correction Law § 168-o (2) seeking to modify the determination that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] § 168 et seq.).   We note that many of the factors upon which defendant relies in support of his modification petition were previously considered by this Court in his prior appeal from the order determining that he is a level three risk (People v. Cullen, 60 AD3d 1466, lv denied 12 NY3d 712).   With respect to any additional factors set forth by defendant in support of his modification petition, we conclude that defendant failed to meet his “burden of proving the facts supporting the requested modification by clear and convincing evidence” (§ 168-o [2];  see People v. Higgins, 55 AD3d 1303).

The further contention of defendant that County Court erred in assessing 20 points against him under the risk factor for his relationship with the victims is unpreserved for our review inasmuch as defendant failed to raise that contention in either of his prior appeals or in support of his modification petition (see generally People v. Smith, 17 AD3d 1045, lv denied 5 NY3d 705).   Defendant also failed to preserve for our review his contention that he is not subject to SORA (see People v. Windham, 10 NY3d 801).   In any event, those contentions are without merit.

Patricia L. Morgan

Clerk of the Court