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

381
KA 11-00057
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ROBERT J. FULLEN, 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 Supreme Court, Monroe County (Frank
P. Geraci, Jr., A.J.), entered December 9, 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 on the ground that his release from
jail without supervision was mitigated by the fact that he did not
serve a long prison sentence (see People v Gilbert, 78 AD3d 1584,
1585-1586, lv denied 16 NY3d 704; People v Ratcliff, 53 AD3d 1110, lv
denied 11 NY3d 708). In any event, there is no basis to disturb the
court’s determination inasmuch as defendant “failed to present clear
and convincing evidence of special circumstances justifying a downward
departure from his presumptive risk level” (People v Ferrara, 38 AD3d
1302, 1303, lv denied 8 NY3d 815).




Entered:    March 23, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
