The Court has for its consideration a petition submitted by defendant wherein he seeks modification of his level of community notification as a convicted sex offender from Level Two (moderate risk to re-offend) to Level One (low risk to re-offend) pursuant to Correction Law §168-o(2). In accordance with the statute this Court requested an updated recommendation from the Board of Examiners of Sex Offenders (the Board). That recommendation was received by the Court on September 13, 2019. The People stated that they will rely on the Court’s discretion. The petition is determined as follows. On April 24, 2008, the defendant pleaded guilty in Suffolk County Court to Possessing a Sexual Performance By a Child in violation of Penal Law §263.16 and was sentenced to six months of incarceration followed by ten years of probation. He successfully completed probation on May 12, 2018. On May 13, 2008, the defendant pleaded guilty in Nassau County Court to Rape in the Third Degree in violation of Penal Law §130.25(2) and was sentenced to six months of incarceration followed by ten years of probation. The defendant successfully completed probation on June 30, 2018. After a hearing in Nassau County Court on January 22, 2009, the defendant was found to be a Level One sex offender for the Rape in the Third Degree conviction by the Honorable Joseph Calabrese. On January 30, 2009, the Honorable Barbara Kahn of the Suffolk County Court adjudicated the defendant a Level Two sex offender. The defendant now moves by petition for an order modifying his risk level to Level One. In support of the petition, the defendant argues that he was successfully discharged from probation on May 12, 2018, and he provided documentation of the following programs: Sexual Offender Treatment Program with Constance Augustyn, a parenting class through the Cody Center for Autism and Developmental Disabilities, a parenting education class through the Town of Smithtown, and the HALT program through VIBS Family Violence and Rape Crisis Center. In September 2018, the defendant was granted sole legal and residential custody of one of his three children from his first marriage and he has regular visitation with his other children. He has also remarried and has two additional children from that union. The defendant has also maintained full time employment with the same company for over a decade. The Court is also in receipt of numerous letters from family members, co-workers, and friends on behalf of the defendant. The Board, in their correspondence dated September 12, 2019, states that they are not opposed to the defendant’s downward modification to a Level One. They confirmed that the defendant has led a law-abiding lifestyle, successfully completed probation and sex offender treatment, and has the support of his family, friends, and community. The People also stated that they will rely on the Court’s discretion. A sex offender seeking to modify his previously assessed risk level bears the burden of proving the facts supporting the requested modification by clear and convincing evidence (see Correction Law §168-o(4); People v. Ortiz, 19 Misc.3d 1137A [2008]). Here, the Court finds that the defendant has met this burden and the petition is granted. Accordingly, the petition is granted and the defendant is now designated a Level One sex offender. This shall constitute the decision and order of the Court. Dated: October 17, 2019
