Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Kevin PORTER, Defendant–Appellant.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered October 7, 2011. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered October 7, 2011. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject defendant's contention that Supreme Court erred in assessing 15 points against him under risk factor 14, for release without supervision. Inasmuch as defendant served his sentence in a local jail and he is due to be released without probation or parole supervision, he was properly assessed the points ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006] ). Even where, as here, defendant was convicted of a misdemeanor, “[o]nce [Supreme] Court determined that the defendant would be released without supervision, its inquiry was ended, and the assessment of 15 points based upon the absence of postrelease supervision was appropriate” ( People v. Lewis, 37 A.D.3d 689, 690, 830 N.Y.S.2d 312,lv. denied8 N.Y.3d 814, 838 N.Y.S.2d 840, 870 N.E.2d 160). We further conclude that “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” of his risk level ( People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723,lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.