STEPHENS, ERIC, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [843] KA 10-01787 PRESENT: SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER ERIC STEPHENS, DEFENDANT-APPELLANT. 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 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. 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 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 ). Entered: July 1, 2011 Patricia L. Morgan Clerk of the Court