THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT FULLEN DEFENDANT APPELLANT (2012)

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 on the ground that his release from jail without supervision was mitigated by the fact that he did not serve a long prison sentence (see People v. Gilbert, 78 AD3d 1584, 1585–1586, lv denied 16 NY3d 704;  People v. Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708).   In any event, there is no basis to disturb the court's determination inasmuch as defendant “failed to present clear and convincing evidence of special circumstances justifying a downward departure from his presumptive risk level” (People v. Ferrara, 38 AD3d 1302, 1303, lv denied 8 NY3d 815).

Frances E. Cafarell

Clerk of the Court