         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
124
KA 09-00734
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHESTER PARKER, DEFENDANT-APPELLANT.


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.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered March 4, 2009. The order determined that defendant
is a level three risk pursuant to the Sex Offender Registration Act.

     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
abused its discretion in failing to grant him a downward departure
from his presumptive risk level. Defendant failed to preserve that
contention for our review inasmuch as he did not request such relief
before the court (see People v Ratcliff, 53 AD3d 1110, lv denied 11
NY3d 708; People v Graham, 35 AD3d 299, lv denied 8 NY3d 808). In any
event, we conclude that defendant “failed to present the requisite
clear and convincing evidence of the existence of special
circumstances warranting a downward departure” (People v Marks, 31
AD3d 1142, 1143, lv denied 7 NY3d 715; see Ratcliff, 53 AD3d 1110).
Although defendant completed two sex offender treatment programs as
well as aggression replacement and substance abuse treatment programs
while incarcerated, he failed to offer any evidence suggesting that
his response to that treatment was “exceptional” (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 17
[2006]). Moreover, the fact that defendant may have abstained from
using alcohol and drugs or engaging in inappropriate sexual behavior
while incarcerated is “ ‘not necessarily predictive of his behavior
when [he is] no longer under such supervision’ ” (People v Urbanski,
74 AD3d 1882, 1883, lv denied 15 NY3d 707; see People v Vangorder, 72
AD3d 1614), and defendant “offered no competent evidence of his
behavior since his release from prison” (People v Ferrara, 38 AD3d
                                 -2-                  124
                                                KA 09-00734

1302, 1303, lv denied 8 NY3d 815).




Entered:   February 10, 2011           Patricia L. Morgan
                                       Clerk of the Court
