| People v Guzman |
| 2012 NY Slip Op 04534 [96 AD3d 1441] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Evan P.Guzman, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered January25, 2011. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court erred in relying upon facts set forth solely in the case summary. Wereject that contention. The case summary may constitute clear and convincing evidence of thefacts alleged therein and, where, as here, the defendant does not dispute the facts contained in thecase summary, the case summary alone is sufficient to support the court's determination (see People v Hubel, 70 AD3d1492, 1493 [2010]; People vGirup, 9 AD3d 913, 913-914 [2004]; see generally People v Mingo, 12 NY3d 563, 571-573 [2009]).Here, in the absence of evidence to the contrary, the court correctly relied upon the case summaryin assessing points against defendant under the risk factor for failure to accept responsibility andexpulsion from treatment (see People vMurphy, 68 AD3d 832, 833 [2009], lv dismissed 14 NY3d 812 [2010]), as wellas the risk factor for improper conduct while confined (see People v Vaughn, 26 AD3d 776, 777 [2006]). Further,defendant failed to establish his entitlement to a downward departure from the presumptive risklevel (see People v Vacanti, 26AD3d 732, 733 [2006], lv denied 6 NY3d 714 [2006]; People v Hamelinck, 23 AD3d1060 [2005]). Present—Smith, J.P., Fahey, Peradotto, Sconiers and Martoche, JJ.