People v. Kelly

2019 NY Slip Op 1654

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 2019
• Docket: 4411/02 8627 8626
• Status: Published

Opinion

People v Kelly (2019 NY Slip Op 01654)

People v Kelly

2019 NY Slip Op 01654

Decided on March 7, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 7, 2019
Renwick, J.P., Manzanet-Daniels, Tom, Kahn, Gesmer, JJ.

4411/02 8627 8626

[*1]The People of the State of New York, Respondent,

v

Benjamin Kelly, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (M. Callagee O'Brien of counsel), for respondent.

Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about September 12, 2017, which denied defendant's Correction Law § 168-o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.

The court providently exercised its discretion in denying a modification of defendant's level two classification. Although defendant contends he has lived a law-abiding life for an extended period since his release, he had been free of parole supervision for only four years at the time of the petition. Defendant inadequately substantiated the other mitigating factors he cited. In any event, even if the mitigating factors were

established, they are outweighed by the seriousness of the sex crime, which was committed against a child over an extended period (see e.g. People v Lopez, 154 AD3d 531 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 7, 2019

CLERK