PEOPLE v. McGUIRE

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

The PEOPLE of the State of New York, Respondent, v. Donell McGUIRE, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

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 erred in refusing to grant his request for a downward departure from his presumptive risk level and to classify him as a level two risk.   We reject that contention, inasmuch as defendant failed to present “ ‘clear and convincing evidence of special circumstances justifying a downward departure’ ” (People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, quoting 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).

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

MEMORANDUM: