People v. Lesch ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 518659
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ANTHONY LESCH,
Appellant.
________________________________
Calendar Date: February 9, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.
__________
Torrance L. Schmitz, Vestal, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose
Parry of counsel), for respondent.
__________
Lahtinen, J.P.
Appeal from an order of the County Court of Broome County
(Cawley, J.), entered March 3, 2014, which denied defendant's
application pursuant to Correction Law § 168-o (2) for, among
other things, reclassification of his sex offender risk level
status.
Defendant entered a guilty plea to sexual abuse in the
first degree in satisfaction of other charges, and was sentenced
to three years in prison to be served concurrently to a federal
prison term of 188 months for his conviction of possession of
child pornography. In 2005, the Board of Examiners of Sex
Offenders presumptively classified defendant as a risk level II
sex offender under the Sex Offender Registration Act (see
Correction Law art 6-C) but, on the Board's recommendation,
-2- 518659
County Court determined that aggravating factors warranted an
upward departure, classified defendant as a risk level III sex
offender and designated him a sexually violent offender and a
predicate offender (see Correction Law § 168-a [7] [b], [c]). On
appeal, this Court affirmed (People v Lesch, 38 AD3d 1129 [2007],
lv denied 8 NY3d 816 [2007]). Defendant thereafter applied for a
modification to a risk level II status pursuant to Correction Law
§ 168-o (2), which County Court denied following a hearing.
Defendant appeals.1
Pursuant to Correction Law § 168-o (2), a sex offender who
is required to register under the Sex Offender Registration Act
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
(see People v Lashaway, 112 AD3d 1235, 1236 [2013], lv granted 22
NY3d 865 [2014]; People v Wright, 78 AD3d 1437, 1438 [2010]).
Defendant, who remains confined in federal prison, argued that a
modification was warranted based upon his positive gains while
incarcerated, including his completion of a sex offender program,
computer certificate programs and a GED, and his acceptance of
responsibility. County Court took into consideration defendant's
steps toward self-improvement as well as the Board's updated
recommendation, and concluded that defendant had not demonstrated
his ability to live crime-free in the community nor submitted
clear and convincing evidence that his risk level should be
reduced. Based upon our review of the record, including the
initial risk classification that previously considered
defendant's guilty plea and asserted acceptance of responsibility
and his extensive criminal history, we do not find that the court
1
Although County Court made a bench ruling after the
January 31, 2014 hearing, the court's written order was not
entered until March 3, 2014 and, thus, defendant's February 7,
2014 notice of appeal was premature. In the interest of judicial
economy, we will excuse the defect, treat the notice of appeal as
valid and address the merits (see CPLR 5520 [c]; People v
Rogowski, 96 AD3d 1113, 1113 n [2012]; People v Barrier, 58 AD3d
1086, 1087 n [2009], lv denied 12 NY3d 707 [2009]; People v
Scott, 35 AD3d 1015, 1016 [2006], lv denied 8 NY3d 808 [2007]).
-3- 518659
abused its discretion in denying defendant's application (see
id.).
McCarthy, Egan Jr. and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court