People v. Fullen

93 A.D.3d 1340, 940 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 2012
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (Frank E 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.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

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 AD3d 1584, 1585-1586 [2010], lv denied 16 NY3d 704 [2011]; People v Ratcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). 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 AD3d 1302, 1303 [2007], lv denied 8 NY3d 815 [2007]). Present — Smith, J.R, Peradotto, Garni and Sconiers, JJ.