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

1342
KA 12-01536
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRUCE VAILLANCOURT, 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 August 2, 2012. 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 relying upon facts set forth in the case
summary prepared by the Board of Examiners of Sex Offenders in
determining his risk level. “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” (People v Guzman, 96 AD3d 1441, 1441-1442, lv denied 19
NY3d 812; see People v Young, 108 AD3d 1232, 1232, lv denied 22 NY3d
853, rearg denied ___ AD3d ___ [Dec. 17, 2013]; People v McDaniel, 27
AD3d 1158, 1159, lv denied 7 NY3d 703). Contrary to defendant’s
further contention, defense counsel’s statement at the hearing that
the court should not rely solely upon the case summary was not the
equivalent of disputing the facts contained therein. Furthermore,
defendant’s contention that the court violated his due process rights
by relying solely upon the case summary is without merit (see People v
Latimore, 50 AD3d 1604, 1605, lv denied 10 NY3d 717; cf. People v
David W., 95 NY2d 130, 138-140; see generally People v Montanez, 88
AD3d 1278, 1279).

     Contrary to defendant’s further contention, “[t]he court’s
discretionary upward departure [to a level three risk] was based on
                                 -2-                         1342
                                                        KA 12-01536

clear and convincing evidence of aggravating factors to a degree not
taken into account by the risk assessment instrument” (People v
Sherard, 73 AD3d 537, 537, lv denied 15 NY3d 707; see People v Miller,
48 AD3d 774, 775, lv denied 10 NY3d 711; People v Sanford, 47 AD3d
454, 454, lv denied 10 NY3d 707). The court properly relied upon
several factors that, “as a matter of law, . . . tend[ed] to establish
a higher likelihood of reoffense or danger to the community” (People v
Wyatt, 89 AD3d 112, 123, lv denied 18 NY3d 803; see People v Campbell,
98 AD3d 5, 13, lv denied 20 NY3d 853). Those factors included the
number of defendant’s prior sex-related offenses, committed in a
variety of settings and spanning nearly a quarter of a century, his
diagnosis of voyeurism, his admission to committing additional sex
acts for which he was not prosecuted, his prior violations of
community-based supervision, and his earlier failures to complete sex
offender treatment.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
