THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ERIC STEPHENS DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ERIC STEPHENS, DEFENDANT–APPELLANT.

KA 10–01787

Decided: July 01, 2011

PRESENT:  SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, 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:  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 County Court erred in failing to determine that he was entitled to a downward departure to a level two risk.   Defendant failed to preserve that contention for our review inasmuch as there is no indication in the record that he requested such a departure (see People v. Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708).   In any event, we conclude that “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;  see People v. Fredendall, 83 AD3d 1545).

Patricia L. Morgan

Clerk of the Court