People v. Ratcliff

53 A.D.3d 1110, 862 N.Y.S.2d 686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered March 14, 2007. 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 Supreme Court committed a mathematical error in presumptively classifying him at that risk level in accordance with the risk assessment instrument and that the court abused its discretion in applying a presumptive override. Defendant failed to preserve those contentions for our review (see generally People v Windham, 10 NY3d 801 [2008]; People v Coleman, 45 AD3d 1118 [2007], lv denied 10 NY3d 705 [2008]; People v Pierce, 27 AD3d 1182 [2006]). We conclude in any event that, although the court erred in presumptively classifying defendant as a level three risk, its alternative application of the presumptive override for a prior sex felony conviction was warranted, based on defendant’s prior conviction of rape in the first degree (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]; People v Castleberry, 43 AD3d 1369 [2007], lv denied 9 NY3d 815 [2007]).

Finally, defendant failed to preserve for our review his contention that the court failed to consider his request for a downward departure inasmuch as there is no indication in the record that he made such a request (see People v Lewis, 50 AD3d 1567 [2008] ). In any event, “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]; see also People v Dexter, 21 AD3d 403, 404 [2005], lv denied 5 NY3d 716 [2005]). Present— Scudder, P.J., Centra, Fahey, Peradotto and Pine, JJ.