THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARK HOLT DEFENDANT APPELLANT (2011)

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARK R. HOLT, DEFENDANT–APPELLANT.

KA 10–01036

Decided: December 30, 2011

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

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, lv denied 13 NY3d 713; People v. Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708). 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, lv. denied 7 NY3d 703).

Frances E. Cafarell

Clerk of the Court

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