           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
843
KA 10-01787
PRESENT: SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ERIC STEPHENS, 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 August 2, 2010. 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
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).




Entered:   July 1, 2011                            Patricia L. Morgan
                                                   Clerk of the Court
