PORTER, KEVIN, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
250
KA 11-02402
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEVIN PORTER, DEFENDANT-APPELLANT.
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.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
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 AD3d 689,
690, lv denied 8 NY3d 814). 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 AD3d 1158, 1159, lv denied 7 NY3d 703).
Entered: March 15, 2013 Frances E. Cafarell
Clerk of the Court