People v. Lashway

• Citation: 112 A.D.3d 1235,977 N.Y.S.2d 491,2013 N.Y. Slip Op. 08556
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven LASHWAY, Appellant.
• Decision Date: 26 December 2013
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1235
977 N.Y.S.2d 491
2013 N.Y. Slip Op. 08556

The PEOPLE of the State of New York, Respondent,
v.
Steven LASHWAY, Appellant.

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

Dec. 26, 2013.

[977 N.Y.S.2d 492]

Marcy I. Flores, Warrensburg, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas Evanovich of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and SPAIN, JJ.

STEIN, J.

Appeal from an order of the County Court of Clinton County (McGill, J.), entered May 10, 2012, which denied defendant's application pursuant to Correction Law § 168–o (2) for, among other things, reclassification of his risk level sex offender status.

In 1990, defendant was convicted of three counts of rape in the second degree and was sentenced to 10 1/2 to 21 years in prison as a second felony offender ( People v. Lashway, 187 A.D.2d 747, 589 N.Y.S.2d 687 [1992], lv. denied81 N.Y.2d 842, 595 N.Y.S.2d 741, 611 N.E.2d 780 [1993] ). In 2004, prior to his release from prison, defendant was designated as a risk level III sex offender under the Sex Offender Registration Act ( see Correction Law art. 6–C [hereinafter SORA] ). He thereafter violated parole and was returned to prison. In June 2010, defendant applied to County Court for a modification of his risk level classification pursuant to Correction Law § 168–o. After obtaining an updated recommendation from the Board of Examiners of Sex Offenders, County Court denied defendant's request, without conducting a hearing. On appeal, this Court found that defendant was entitled to a hearing and remitted the matter to County Court for further proceedings (90 A.D.3d 1178, 933 N.Y.S.2d 922 [2011], lv. dismissed18 N.Y.3d 945, 944 N.Y.S.2d 468, 967 N.E.2d 692 [2012] ). County Court thereafter received another updated recommendation from the Board and, following a hearing, once again denied defendant's application. Defendant now appeals and we affirm.

[977 N.Y.S.2d 493]

Correction Law § 168–o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification. However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted ( seeCorrection Law § 168–o [2] ), and the trial court's determination will not be disturbed absent an abuse of discretion ( see People v. Wright, 78 A.D.3d 1437, 1438, 911 N.Y.S.2d 513 [2010] ). Here, in support of his application for a modification to risk level II, defendant argued that (1) he did not pose a danger to society because of his deteriorating health, (2) he had completed various programs while incarcerated including, among others, a sex offender treatment program, (3) his instant offenses did not involve the use of force, (4) he had not committed a sex offense in more than two decades, and (5) his current risk level assessment makes him a target of harassment and assaults while incarcerated. None of these claims is persuasive.

It is significant to note that the 2004 risk assessment instrument applied a presumptive “override” to risk level III based upon defendant's prior felony conviction for a sex crime ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3–4 [2006] ). In addition, since the time of his classification, defendant was found to have a mental abnormality as defined in the Sex Offender Management and Treatment Act ( see Mental Hygiene Law art. 10) and was confined to a psychiatric center. While so confined, defendant violated his parole by assaulting a staff member at a state facility, which led to his reincarceration. This undercuts his claim that his physical ailments prevent him from being a risk to the community. Moreover, the record reflects that, during his incarceration, defendant was charged with multiple disciplinary infractions and was discharged from institutional programs due to poor participation. Under these circumstances, we cannot conclude that County Court's denial of defendant's application for a downward modification was an abuse of that court's discretion.

Defendant's claim that County Court erred by denying his request to adjourn the hearing is similarly unavailing. Shortly before the hearing, defendant submitted to County Court a proposed order requiring, as pertinent here, that the Clinton County District Attorney's office and the Board show cause why the Board should not be directed to deliver to the court on the date of the risk level modification hearing certified copies of all documents that the Board listed in its July 2010 and March 2012 updated recommendations. The Board provided the vast majority of the documents sought within approximately one week of its receipt of the order to show cause and six days prior to the hearing ¹ and explained that the remainder of the documents were in a file that had to be retrieved from a storage facility, which might take several weeks. This explanation was not disputed by defendant. However, when defendant appeared for the hearing, he requested an adjournment pending his receipt of the remaining documents,² which County Court denied.

[977 N.Y.S.2d 494]

Defendant argues, and the dissent agrees, that because he was not provided with all of the requested documents prior to the hearing, he was unable to controvert the evidence relied upon by the Board in making its updated recommendation. However, we note that the Board's recommendation merely listed the subject documents as having been “reviewed” by the Board; the Board did not explicitly rely on them or even mention their contents in setting forth the basis for its recommendation. More significantly, County Court was not bound by the Board's recommendation as to whether to modify defendant's risk assessment level ( see generally Matter of VanDover v. Czajka, 276 A.D.2d 945, 946, 714 N.Y.S.2d 793 [2000]; Matter of New York State Bd. of Examiners of Sex Offenders v. Ransom, 249 A.D.2d 891, 892, 672 N.Y.S.2d 185 [1998] ), and there is no evidence—nor does defendant argue—that County Court was in possession of, let alone considered, the subject documents in making its determination.³ Instead, the court based its denial of defendant's application on the finding that defendant had a mental abnormality, his violation of parole, his assaultive behavior while in custody and the presumptive override resulting from his prior felony conviction of a sex crime. Stated otherwise, County Court determined that defendant failed to meet his burden of establishing by clear and convincing evidence that the claims made in his application warranted a modification of his risk assessment level.

We do not take issue with the argument that defendant was entitled to discovery of the materials in question. However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” (Kropp v. Town of Shandaken, 91 A.D.3d 1087, 1092, 937 N.Y.S.2d 345 [2012] [internal quotation marks and citation omitted] ). In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court's decision to deny defendant's request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof ( see generally People v. Peterkin, 81 A.D.3d 1358, 1359, 921 N.Y.S.2d 744 [2011], lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ), and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing.

Significantly, the documents at issue were referenced in the Board's July 2010 updated recommendation, of which defendant had possession since August 2010. In January 2012, one month after this Court held that defendant was entitled...