
    The People of the State of New York, Respondent, v Tyrone Graham, Appellant.
    [825 NYS2d 361]
   Order, Supreme Court, New York County (Ruth L. Sussman, J.), entered on or about February 28, 2005, which adjudicated defendant a level three sex offender, unanimously affirmed, without costs.

Defendant’s argument that the court incorrectly assessed certain risk factor points is academic, because it is undisputed that even without the five points at issue, defendant would still qualify as a level three sex offender. Defendant’s argument for a downward departure is unpreserved because he made no such request to the hearing court. In any event, there is no basis in the record for such a departure (see People v Mabb, 32 AD3d 1135 [2006]). Concur—Tom, J.P., Marlow, Williams, Gonzalez and Catterson, JJ.  