Opinion
No. KA 07-01784.
December 31, 2008.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered July 20, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-Appellant.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR Respondent.
Before: Martoche, J.P., Smith, Fahey and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court erred in refusing to grant his request for a downward departure from his presumptive risk level and to classify him as a level two risk. We reject that contention, inasmuch as defendant failed to present "'clear and convincing evidence of special circumstances justifying a downward departure'" ( People v Ratcliff, 53 AD3d 1110, quoting People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703).