PEOPLE v. STAPLES (2007)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Donald STAPLES, Defendant-Appellant.

Decided: February 02, 2007

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PERADOTTO, JJ.

Edward J. Nowak, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Plaintiff-Respondent.

Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant contends that his conviction for failing to register as a sex offender (see § 168-t) is not a proper or sufficient basis for an upward departure from his presumptive risk level and thus that Supreme Court erred in departing from the presumptive risk level on that basis. That contention is raised for the first time on appeal and thus is not preserved for our review (see Oram v. Capone, 206 A.D.2d 839, 615 N.Y.S.2d 799). In any event, defendant's contention lacks merit.

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

MEMORANDUM:

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