           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1396
KA 10-01036
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MARK R. HOLT, 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 12, 2010. The order determined that defendant
is a level two risk pursuant to the Sex Offender Registration Act.

     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).




Entered:    December 30, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
