People v. Stephens , 926 N.Y.2d 338 ( 2011 )

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 [2008], Iv denied 11 NY3d 708 [2008]). 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 [2006], Iv denied 7 NY3d 703 [2006]; see People v Fredendall, 83 AD3d 1545 [2011]). Present — Scudder, P.J., Smith, Garni, Green and Martoche, JJ.