People v Ratcliff

2008 NY Slip Op 06082

Decided on July 3, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2008


PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.
942 KA 07-01626




Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered March 14, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.


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 Supreme Court committed a mathematical error in presumptively classifying him at that risk level in accordance with the risk assessment instrument and that the court abused its discretion in applying a presumptive override. Defendant failed to preserve those contentions for our review (see generallyPeople v Windham, 10 NY3d 801; People v Coleman, 45 AD3d 1118, lv denied 10 NY3d 705; People v Pierce, 27 AD3d 1182). We conclude in any event that, although the court erred in presumptively classifying defendant as a level three risk, its alternative application of the presumptive override for a prior sex felony conviction was warranted, based on defendant's prior conviction of rape in the first degree (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]; People v Castleberry, 43 AD3d 1369, lv denied 9 NY3d 815).

Finally, defendant failed to preserve for our review his contention that the court failed to consider his request for a downward departure inasmuch as there is no indication in the record that he made such a request (see People v Lewis, 50 AD3d 1567). In any event, "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 also People v Dexter, 21 AD3d 403, 404, lv denied 5 NY3d 716).[*2]
Entered: July 3, 2008
JoAnn M. Wahl
Clerk of the Court