People v. West

201 A.D.3d 1242

159 N.Y.S.3d 782

The PEOPLE of the State of New York, Respondent,

v.Henry WEST, Appellant.

533338

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

Calendar Date: December 15, 2021

Decided and Entered: January 20, 2022

Adam G. Parisi, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from an order of the County Court of Schenectady County (Sypniewski, J.), entered April 26, 2021, which denied defendant's application pursuant to Correction Law § 168–o (2) for reclassification of his sex offender risk level status.

In 1986, defendant was convicted upon his guilty plea of, as is relevant here, attempted rape in the first degree ( People v. West, 140 A.D.2d 852, 529 N.Y.S.2d 41 [1988] ). While on parole, the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) was enacted and, in 1998, he was classified as a risk level three sex offender. As defendant was further convicted in 1997 of rape in the first degree, among other crimes, and sentenced to an aggregate prison term of 25 years to life ( People v. West, 257 A.D.2d 767, 684 N.Y.S.2d 24 [1999], lv denied 93 N.Y.2d 880, 689 N.Y.S.2d 442, 711 N.E.2d 656 [1999] ), he remains incarcerated at this time.¹

In 2004, following a hearing and upon his consent, defendant was redetermined to be a risk level three sex offender. In 2018, defendant filed a pro se motion to modify his risk level classification from a risk level three to a risk level one, pursuant to Correction Law § 168–o (2). Defendant, represented by counsel, later changed the modification request, seeking a risk level two designation. An updated recommendation from the Board of Examiners of Sex Offenders opposed the modification, as did the People. Following a hearing, County Court denied defendant's request for a modification.² Defendant appeals.

"Pursuant to Correction Law § 168–o (2), a sex offender who is required to register under [SORA] may seek a downward modification of his or her risk level status, and he or she bears the burden of establishing by clear and convincing evidence that the downward modification is warranted" ( People v. Hartwick, 181 A.D.3d 1098, 1099, 119 N.Y.S.3d 776 [2020] [internal quotation marks and citations omitted]; see People v. Smilowitz, 178 A.D.3d 1187, 1187, 111 N.Y.S.3d 471 [2019] ). The relevant inquiry is whether conditions have changed, subsequent to the initial risk level classification, so as to warrant a modification thereof (see People v. Austin, 182 A.D.3d 937, 938, 122 N.Y.S.3d 191 [2020] ; People v. Anthony, 171 A.D.3d 1412, 1413, 99 N.Y.S.3d 115 [2019] ). The trial court's determination in this regard will not be disturbed, absent an abuse of discretion (see People v. Lashway, 25 N.Y.3d 478, 483, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ; People v. Stein, 194 A.D.3d 1201, 1203, 148 N.Y.S.3d 522 [2021], lv denied 37 N.Y.3d 913, 2021 WL 5409443 [2021] ; People v. Hartwick, 181 A.D.3d at 1099, 119 N.Y.S.3d 776 ).

Defendant asserted that a downward modification is warranted based upon his professed abstinence from alcohol use for over 20 years, documentary evidence of his participation in a sex offender treatment program, and his limited prison disciplinary history. As to defendant's sobriety, while laudable, County Court noted that his achievement has been maintained solely while incarcerated. It was likewise noted that defendant has provided no proof of his successful completion of the sex offender treatment program. County Court further emphasized that, despite defendant's limited disciplinary history while incarcerated, his criminal history reflects multiple sex offenses against children shortly after being paroled or without supervision, and he has made no showing that he is now able to reside in the community without the highest level of supervision. We also note that the record reflects that when defendant consented to the 2004 redetermination classifying him as a risk level three sex offender, he told the court that his reasoning was based, in part, upon the fact that he was being housed in the...