        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

790
KA 14-02030
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHANIEL WILLIS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (CHRISTOPHER
EAGGLESTON OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (William F.
Kocher, J.), entered August 13, 2014. The order affirmed an order of
the Canandaigua City Court, which denied defendant’s petition for a
downward modification of his 2006 Sex Offender Registration Act
classification.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant commenced this proceeding in Canandaigua
City Court, seeking, pursuant to Correction Law § 168-o, a downward
modification of his previously-imposed classification as a level three
risk pursuant to the Sex Offender Registration Act ([SORA] § 168 et
seq.). The court denied the petition and defendant appealed from that
order in County Court. He now appeals from an order of County Court
that affirmed City Court’s order.

     Initially, we note that “[a]n appeal may be taken to the
appellate division as of right from an order of a county court . . .
which determines an appeal from a judgment of a lower court” (CPLR
5703 [b]), and here County Court determined the appeal from an order
of City Court, not a judgment. Nevertheless, “where[, as here,] the
rights of the parties are for all practical purposes finally
determined,” we conclude that this appeal as of right pursuant to CPLR
5703 (b) is properly before us (Highlands Ins. Co. v Maddena Constr.
Co., 109 AD2d 1071, 1072; see Hayes v City of Amsterdam, 2 AD3d 1139,
1140; Pigler v Adam, Meldrum & Anderson Co., 195 AD2d 1011, 1011).

     Defendant failed to preserve for our review his contention that
City Court erred in requiring that he establish his entitlement to a
reduction of his risk level by clear and convincing evidence (see
generally People v Akinpelu, 126 AD3d 1451, 1452; People v Shepard,
                                 -2-                           790
                                                         KA 14-02030

103 AD3d 1224, 1224, lv denied 21 NY3d 856). In any event, that
contention is without merit because, in a petition for a modification
of a SORA risk level pursuant to section 168-o (2), defendant “bears
the burden of proving the facts supporting a requested modification by
clear and convincing evidence” (People v Lashway, __ NY3d ___, ___
[June 11, 2015]; see People v David W., 95 NY2d 130, 140; People v
Grossman, 85 AD3d 1632, 1632, lv denied 17 NY3d 708), and here
defendant failed to meet that burden (see People v McCollum, 83 AD3d
1504, 1504-1505; People v Cullen, 79 AD3d 1677, 1677, lv denied 16
NY3d 709).

     Finally, we reject defendant’s contention that City Court failed
to hold a hearing as required by Correction Law § 168-o (4). To the
contrary, that court conducted a hearing at which it admitted all
evidence submitted by defendant. Defendant failed to preserve for our
review his further contention that a more extensive hearing was
required (see generally Cullen, 79 AD3d at 1677).




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
