
    The People of the State of New York, Respondent, v Donald Staples, Appellant.
    [829 NYS2d 337]
   Appeal from an order of the Supreme Court, Monroe County (John J. Brunetti, A.J.), entered February 9, 2005. 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 be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant contends that his conviction for failing to register as a sex offender (see § 168-t) is not a proper or sufficient basis for an upward departure from his presumptive risk level and thus that Supreme Court erred in departing from the presumptive risk level on that basis. That contention is raised for the first time on appeal and thus is not preserved for our review (see Oram v Capone, 206 AD2d 839 [1994]). In any event, defendant’s contention lacks merit. Fresent—Hurlbutt, J.E, Martoche, Smith, Fahey and Feradotto, JJ.  