Opinion
No. KA 09-01456.
February 18, 2011.
Appeal from an order of the Monroe County Court (Frank R Geraci, Jr., J.), entered June 15, 2009. 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 GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present — Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, 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 he was entitled to a downward departure from his presumptive risk level. Defendant failed to preserve that contention for our review ( see People v Gilbert, 78 AD3d 1584, 1585-1586; People v Kelley, 64 AD3d 1192, lv denied 13 NY3d 708). In any event, that contention lacks merit inasmuch as defendant failed to "'present clear and convincing evidence of special circumstances justifying a downward departure'" ( People v Clark, 66 AD3d 1366, 1367, lv denied 13 NY3d 713; see People v Sawyer, 78 AD3d 1517).