Opinion
July 3, 2008.
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.
Present: Scudder, P.J., Centra, Fahey, Peradotto and Pine, JJ.
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 generally People 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).