*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 193

KA 09-01456

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER GEORGE E. ROGERS, 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 15, 2009. 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 he was entitled to a downward departure from his presumptive risk level. Defendant failed to preserve that contention for our review ( see People v Gilbert , 78 AD3d 1584, 1585-1586; People v Kelley , 64 AD3d 1192, lv denied 13 NY3d 708). In any event, that contention lacks merit inasmuch as defendant failed to “ ‘present clear and convincing evidence of special circumstances justifying a downward departure’ ” ( People v Clark , 66 AD3d 1366, 1367, lv denied 13 NY3d 713; see People v Sawyer , 78 AD3d 1517).

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court