People v. Mercado

• Decision Date: 29 May 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert MERCADO, Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1367

986 N.Y.S.2d 700

2014 N.Y. Slip Op. 03902

The PEOPLE of the State of New York, Respondent,

v.Robert MERCADO, Appellant.

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

May 29, 2014.

Law Office of Zachary Margulis–Ohnuma, New York City (Zachary Margulis–Ohnuma of counsel), for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.

ROSE, J.

Appeal from an order of the County Court of Washington County (Hall, Jr., J.), entered July 17, 2013, which denied defendant's application pursuant to Correction Law § 168–o (2) for reclassification of his sex offender risk level status.

Defendant pleaded guilty to rape in the first degree and was sentenced to 8 1/3 to 25 years in prison. As his release to parole supervision neared in 2011, defendant was adjudicated to be a risk level III sexually violent offender pursuant to the Sex Offender Registration Act ( see Correction Law art. 6–C). Approximately two years later, he petitioned for a downward modification in his risk level status pursuant to Correction Law § 168–o (2). County Court denied the application, and defendant now appeals.

We affirm. Defendant, as a sex offender seeking a downward modification of his risk level classification, bore the burden of demonstrating by clear and convincing evidence that the proposed modification was warranted ( seeCorrection Law § 168–o [2]; People v. David W., 95 N.Y.2d 130, 140, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000];People v. Lashway, 112 A.D.3d 1235, 1236, 977 N.Y.S.2d 491 [2013],lv. granted22 N.Y.3d 865, 2014 WL 1316230 [2014] ). County Court acknowledged here that defendant has taken significant strides since his release from prison, including having completed two courses of sex offender treatment and commencing a third, establishing a stable residence, finding employment as a mechanic, becoming romantically involved with an adult and complying with the terms of his parole. Moreover, defendant submitted a recent psychiatric and risk assessment finding that his “risk of recidivism is remote.” The Board of Examiners of Sex Offenders nevertheless recommended that his risk level not be modified, pointing out that he had been in the community for a relatively short period of time and that his positive adjustment to release may be attributable to the external controls on his behavior imposed by parole supervision....