Opinion
2012-03-23
The PEOPLE of the State of New York, Respondent, v. Robert J. FULLEN, Defendant–Appellant.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered December 9, 2010. The order determined that defendant is a level two 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.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered December 9, 2010. The order determined that defendant is a level two 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.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level on the ground that his release from jail without supervision was mitigated by the fact that he did not serve a long prison sentence ( see People v. Gilbert, 78 A.D.3d 1584, 1585–1586, 910 N.Y.S.2d 808, lv. denied 16 N.Y.3d 704, 2011 WL 446506; People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084). In any event, there is no basis to disturb the court's determination inasmuch as defendant “failed to present clear and convincing evidence of special circumstances justifying a downward departure from his presumptive risk level” ( People v. Ferrara, 38 A.D.3d 1302, 1303, 832 N.Y.S.2d 365, lv. denied 8 N.Y.3d 815, 839 N.Y.S.2d 454, 870 N.E.2d 695).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.