THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. THEODORE MCCOLLUM DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. THEODORE MCCOLLUM, DEFENDANT–APPELLANT.

KA 10–01076

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ. JONES & MORRIS, VICTOR (MICHAEL A. JONES, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS 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 prior determination that he is a level three risk pursuant to the Sex Offender Registration Act (§ 168 et seq ).  “We agree with County Court that defendant failed to meet his ‘burden of proving the facts supporting the requested modification by clear and convincing

evidence' “ (People v. Higgins, 55 AD3d 1303, quoting § 168–o [2];  see People v. Cullen, 79 AD3d 1677).

Patricia L. Morgan

Clerk of the Court