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

680
KA 11-00401
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

EVAN P. GUZMAN, 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 January 25, 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: On appeal from an order determining that he is a
level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in relying upon facts set forth solely in the case summary. We
reject that contention. The case summary may constitute clear and
convincing evidence of the facts alleged therein and, where, as here,
the defendant does not dispute the facts contained in the case
summary, the case summary alone is sufficient to support the court’s
determination (see People v Hubel, 70 AD3d 1492, 1493; People v Girup,
9 AD3d 913, 913-914; see generally People v Mingo, 12 NY3d 563,
571-573). Here, in the absence of evidence to the contrary, the court
correctly relied upon the case summary in assessing points against
defendant under the risk factor for failure to accept responsibility
and expulsion from treatment (see People v Murphy, 68 AD3d 832, 833,
lv dismissed 14 NY3d 812), as well as the risk factor for improper
conduct while confined (see People v Vaughn, 26 AD3d 776, 777).
Further, defendant failed to establish his entitlement to a downward
departure from the presumptive risk level (see People v Vacanti, 26
AD3d 732, 733, lv denied 6 NY3d 714; People v Hamelinck, 23 AD3d
1060).


Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
