PEOPLE v. RATCLIFF (2008)

 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 N.Y.3d 801, 856 N.Y.S.2d 557, 886 N.E.2d 179;  People v. Coleman, 45 A.D.3d 1118, 846 N.Y.S.2d 460, lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803;  People v. Pierce, 27 A.D.3d 1182, 811 N.Y.S.2d 541).   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 A.D.3d 1369, 842 N.Y.S.2d 824, lv. denied 9 N.Y.3d 815, 849 N.Y.S.2d 31, 879 N.E.2d 171).

 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 A.D.3d 1567, 856 N.Y.S.2d 787).   In any event, “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” (People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241;  see also People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807, lv. denied 5 N.Y.3d 716, 807 N.Y.S.2d 16, 840 N.E.2d 1030).

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

MEMORANDUM: