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People v. McGuire

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


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DONELL MCGUIRE, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered July 20, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, 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 erred in refusing to grant his request for a downward departure from his presumptive risk level and to classify him as a level two risk. We reject that contention, inasmuch as defendant failed to present " clear and convincing evidence of special circumstances justifying a downward departure' " (People v Ratcliff, 53 AD3d 1110, quoting People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703).

20081231

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