Opinion
No. KA 10-01787.
July 1, 2011.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered August 2, 2010. 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 — Scudder, P.J., Smith, Carni, Green and Martoche, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
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 County Court erred in failing to determine that he was entitled to a downward departure to a level two risk. Defendant failed to preserve that contention for our review inasmuch as there is no indication in the record that he requested such a departure ( see People v Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708 ). In any event, we conclude that "defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure" ( People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703; see People v Fredendall, 83 AD3d 1545).