People v. Holt

90 A.D.3d 1678, 935 N.Y.2d 519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2011
• Status: Published

Opinion

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 (see People v Clark, 66 AD3d 1366 [2009], lv denied 13 NY3d 713 [2009]; People v Ratcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]). 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 McDaniel, 27 AD3d 1158, 1159 [2006], lv denied 7 NY3d 703 [2006]). Present — Smith, J.E, Fahey, Garni, Sconiers and Gorski, JJ.