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