People v. Rogers

81 A.D.3d 1441, 916 N.Y.S.2d 879

Opinion

— Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered June 15, 2009. 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 he was entitled to a downward departure from his presumptive risk level. Defendant failed to preserve that contention for our review (see People v Gilbert, 78 AD3d 1584, 1585-1586 [2010]; People v Kelley, 64 AD3d 1192 [2009], lv denied 13 NY3d 708 [2009]). 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 Clark, 66 AD3d 1366, 1367 [2009], lv denied 13 NY3d 713 [2009]; see People v Sawyer, 78 AD3d 1517 [2010]). Present— Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.