The defendant has petitioned the Court for an order pursuant to Correction Law 168-o modifying the defendant's level of notification as a sex offender from Level III to Level I. The Court forwarded the defendant's petition to the Board of Examiners of Sex Offenders and has received an updated recommendation from the Board pertaining to the defendant, as required by Correction Law 168-o(4). On March 27, 2008, a hearing was held, at which the defendant testified in support of the requested modification. The defendant also offered into evidence the Psychological Evaluation Report of Stephen Honor, Ph.D., P.C., a clinical neuropsychologist who evaluated the defendant from July 5, 2007 to October 6, 2007. After reviewing the Court record, the parties' submissions and the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

On October 15, 1998, the defendant pled guilty to the reduced charge of Attempted Rape in the Third Degree, for having had sexual intercourse on numerous occasions with a 15 year old girl. The defendant, who was 43 years old at the time of the crime, was sentenced to three years of probation and was designated a Level III sex offender with a risk factor score of 115. At the time of the guilty plea, the defendant was required to register for ten years as a Level III sex offender under the Sex Offender Registration Act (Correction Law 168 et seq.). The [*2]statute was later amended, however, as a result of which the defendant is now subject to lifetime registration.

The defendant testified that he has stayed out of trouble since his arrest for this crime. He admitted on cross-examination that he had kept a number of photographs of the victim during the period when he was being evaluated for probation, and that he had turned in some of the photographs at the time of sentencing, but maintains that he no longer has any photographs of her. The defendant further testified that he has been married for the past four years and lives with his wife in an apartment in Patchogue. He testified that his Level III designation caused him housing difficulties when his landlord refused to renew his lease after learning of his status as a sex offender. In addition, he was subjected to embarrassment at the warehouse job he has held for the past five years when a co-worker announced the defendant's status as a Level III sex offender, although his employer was already aware of his status. The defendant is presently on a medical leave from work following quadruple by-pass surgery, and suffers from both heart disease and diabetes.

The sex offender registration and notification requirement is regulatory, rather than criminal, in nature, and is not intended to effect punishment. See, People v. Mitchell, 300 AD2d 377 (2d Dept. 2002). Thus, the statutory increase in the defendant's registration period as a Level III sex offender from ten years to lifetime does not constitute a due process or ex post facto violation and is not a ground for modifying his previously assessed risk level. See, People v. Mitchell, supra, at 378; see also, Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), cert. den. 522 U.S. 1122 (1998); People v. Stevens, 91 NY2d 270 (1998).

The defendant was represented by counsel at the time of his initial risk assessment which resulted in a risk factor score of 115. Utilization of the risk assessment instrument when classifying a sex offender's risk level "will generally result in the proper classification in most cases so that departures will be the exception not the rule... A departure from the presumptive risk level is warranted only where there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines." People v. Dexter, 21 AD3d 403 (2d Dept. 2005), lv. den. 5 NY3d 716 (2005). There is nothing in the record to suggest that the defendant's initial risk assessment was not proper or that a mitigating [*3]factor existed to warrant a departure from the presumptive risk level at that time.

A sex offender seeking to modify his previously assessed risk level bears the burden of proving the facts supporting the requested modification by clear and convincing evidence. See, Correction Law 168-o(2); People v. Puner, 11 Misc 3d 1083A, 2006 NY Slip Op 50679U (County Ct., Westchester County 2006). The fact that the defendant's risk factor score of 115 is only five points above the threshold for a Level III designation does not warrant a reduction in his assessed risk level in the absence of such clear and convincing evidence.

The Court has taken into consideration that the defendant has not been arrested since his conviction for this crime, that he has held the same job for five years and has been married for four years. These factors do not, however, warrant a downward modification of the defendant's risk classification, given the predatory nature of his crime and the high risk of recidivism. See, e.g., People v. Stevens, supra, 91 NY2d at 275; Doe v. Pataki, supra, 120 F.3d at 1276; Correction Law 168, Historical and Statutory Notes (McKinney's 2003). The defendant's housing difficulties and embarrassment over his sex offender classification similarly do not warrant a modification. While defendant's clinical neuropsychologist Stephen Honor, Ph.D., P.C., opines in his psychological evaluation report that the defendant "does not appear to present a risk to the community in any way," the Board of Examiners of Sex Offenders has recommended that the defendant's classification remain at Level III based on the nature of his crime, his victimization of the child and his conduct during probation.

After reviewing the updated recommendation received from the Board of Examiners of Sex Offenders and the evidence adduced at the hearing, the Court finds that the defendant has failed to meet his burden of proving, by clear and convincing evidence, that a modification of his level of notification is warranted. The defendant's application is therefore denied and the petition dismissed.

This constitutes the decision and order of the Court.