Opinion
145 KA 19–00071
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Andres AYALA, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order denying his petition to vacate his designation as a level one risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). County Court properly denied the petition, which defendant ostensibly made pursuant to Correction Law § 168–o. Contrary to defendant's contention, Correction Law § 168–o (2) does not permit a petition to "vacate" a level one risk designation. That subdivision provides only for "modification" of a risk level ( § 168–o [2] ), and downward modification from risk level one is impossible because "SORA does not include a no risk category" ( People v. Ayala, 72 A.D.3d 1577, 1578, 898 N.Y.S.2d 912 (4th Dept. 2010), lv denied 15 N.Y.3d 816, 908 N.Y.S.2d 148, 934 N.E.2d 882 [2010] [internal quotation marks omitted] ). Furthermore, we reject defendant's challenge to the procedures employed by the court in denying the petition. Because the petition submitted by defendant does not constitute "a petition ... pursuant to subdivision one, two or three [of Correction Law § 168–o ]," we conclude that the court was not required to follow the procedures set forth in subdivision four ( § 168–o [4] ).