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

316
KA 15-00977
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KURT A. MCCALL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (James J.
Piampiano, J.), entered April 27, 2015. 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 grant a downward departure from his presumptive
risk level. “Defendant failed to request a downward departure to a
level two risk, and thus he failed to preserve for our review his
contention that the court erred in failing to afford him that downward
departure from his presumptive level three risk” (People v Quinones,
91 AD3d 1302, 1303, lv denied 19 NY3d 802; see People v Havens, 144
AD3d 1632, 1632; People v Montanez, 88 AD3d 1278, 1280; cf. People v
George, 141 AD3d 1177, 1178).

     In any event, we conclude that the facts herein do not warrant a
downward departure. “A departure from the presumptive risk level is
warranted if there is ‘an aggravating or mitigating factor of a kind,
or to a degree, that is otherwise not adequately taken into account by
the guidelines’ ” (People v Smith, 122 AD3d 1325, 1325, quoting Sex
Offender Registration Act: Risk Assessment Guidelines and Commentary
at 4 [2006]; see People v Carlberg, 145 AD3d 1646, 1646-1647).
Defendant failed to identify or establish the existence of any such
mitigating factor (see People v Scone, 145 AD3d 1327, 1328; Montanez,
88 AD3d at 1280; see also People v Finocchiaro, 140 AD3d 1676, 1676-
                                -2-                  316
                                               KA 15-00977

1677, lv denied 28 NY3d 906).




Entered:   March 31, 2017             Frances E. Cafarell
                                      Clerk of the Court
