| People v Vaillancourt |
| 2013 NY Slip Op 08769 [112 AD3d 1375] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Bruce Vaillancourt, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr.,A.J.), entered August 2, 2012. The order determined that defendant is a level three riskpursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level threerisk pursuant to the Sex Offender Registration Act (Correction Law § 168 etseq.). We reject defendant's contention that Supreme Court erred in relying uponfacts set forth in the case summary prepared by the Board of Examiners of Sex Offendersin determining his risk level. "The case summary may constitute clear and convincingevidence of the facts alleged therein and, where, as here, the defendant does not disputethe facts contained in the case summary, the case summary alone is sufficient to supportthe court's determination" (People v Guzman, 96 AD3d 1441, 1441-1442 [2012],lv denied 19 NY3d 812 [2012]; see People v Young, 108 AD3d 1232, 1232 [2013], lvdenied 22 NY3d 853 [2013], rearg denied — NY3d —, 2013NY Slip Op 94322 [2013]; People v McDaniel, 27 AD3d 1158, 1159 [2006], lvdenied 7 NY3d 703 [2006]). Contrary to defendant's further contention, defensecounsel's statement at the hearing that the court should not rely solely upon the casesummary was not the equivalent of disputing the facts contained therein. Furthermore,defendant's contention that the court violated his due process rights by relying solelyupon the case summary is without merit (see People v Latimore, 50 AD3d 1604, 1605 [2008], lvdenied 10 NY3d 717 [2008]; cf. People v David W., 95 NY2d 130, 138-140[2000]; see generally People vMontanez, 88 AD3d 1278, 1279 [2011]).
Contrary to defendant's further contention, "[t]he court's discretionary upwarddeparture [to a level three risk] was based on clear and convincing evidence ofaggravating factors to a degree not taken into account by the risk assessment instrument"(People v Sherard, 73AD3d 537, 537 [2010], lv denied 15 NY3d 707 [2010]; see People v Miller, 48 AD3d774, 775 [2008], lv denied 10 NY3d 711 [2008]; People v Sanford, 47 AD3d454, 454 [2008], lv denied 10 NY3d 707 [2008]). The court properly reliedupon several factors that, "as a matter of law, . . . tend[ed] to establish ahigher likelihood of reoffense or danger to the community" (People v Wyatt, 89 AD3d112, 123 [2011], lv denied 18 NY3d [*2]803[2012]; see People vCampbell, 98 AD3d 5, 13 [2012], lv denied 20 NY3d 853 [2012]).Those factors included the number of defendant's prior sex-related offenses, committedin a variety of settings and spanning nearly a quarter of a century, his diagnosis ofvoyeurism, his admission to committing additional sex acts for which he was notprosecuted, his prior violations of community-based supervision, and his earlier failuresto complete sex offender treatment. Present—Smith, J.P., Fahey, Lindley, Sconiersand Whalen, JJ.