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

146
KA 11-01849
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMAL COOKE, 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 Monroe County Court (Frank P. Geraci,
Jr., J.), entered July 18, 2011. The order determined that defendant
is a level two 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 two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant contends that County
Court erred in denying his request for a downward departure from his
presumptive risk level. Specifically, defendant contends that,
because his sentence for the underlying sex offense did not include a
period of postrelease supervision, it was determined that he is not a
risk to the community, and the lack of postrelease supervision
therefore constitutes a mitigating factor warranting a downward
departure. We reject that contention. A downward departure from the
presumptive risk level is warranted where “there exists a[] . . .
mitigating factor of a kind, or to a degree, that is otherwise not
adequately taken into account by the [risk assessment] guidelines”
(Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary at 4 [2006]; see People v Coffey, 45 AD3d 658, 658).
Inasmuch as defendant’s release from prison without “official”
supervision is a factor adequately taken into account by risk factor
14 (Release Environment: Supervision) of the Risk Assessment
Instrument (RAI), it is not a mitigating factor warranting a downward
departure (see generally People v Riverso, 96 AD3d 1533, 1534).
Indeed, the RAI assesses more points to a defendant released without
official supervision because “[s]trict supervision is essential when a
sex offender is released into the community” (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary at 17).
Additionally, we note that, although other law enforcement personnel
                                 -2-                          146
                                                        KA 11-01849

involved in defendant’s criminal action may have determined that
defendant could be released without supervision following his
incarceration, that determination is not controlling on the SORA
court’s risk level determination (see generally People v Jackson, 70
AD3d 1385, 1386, lv denied 14 NY3d 714).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
