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

583
KA 10-01433
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

KEVIN NATER-VAZQUEZ, 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 June 9, 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: Defendant appeals 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 agreeing with the recommendation of the Board of Examiners of
Sex Offenders that an upward departure from the presumptive risk level
was warranted inasmuch as the court relied upon factors already taken
into account by the risk assessment instrument. That contention is
raised for the first time on appeal and thus is not preserved for our
review (see People v Staples, 37 AD3d 1099, lv denied 8 NY3d 813). In
any event, defendant’s contention lacks merit.




Entered:    April 27, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
