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

812
KA 12-00990
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STANLEY BETHUNE, 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 April 20, 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.). Defendant was convicted upon his plea
of guilty of, inter alia, aggravated sexual abuse in the first degree
(Penal Law § 130.70), and he was thereafter adjudicated a level three
risk. Contrary to defendant’s contention, Supreme Court properly
determined that he had previously been convicted of a felony sex crime
and applied the corresponding override provision. The case summary
stated that defendant had previously been convicted in the State of
California of, inter alia, the crime of oral copulation. A conviction
of such a crime may be a misdemeanor or a felony, depending upon the
particulars of the conviction (see generally People v Hofsheier, 37
Cal 4th 1185, 1196 n 3). In addition to stating the name of the crime
of which defendant was convicted in California, however, the case
summary repeatedly indicated that defendant had previously been
convicted of a “felony sex crime,” the oral copulation conviction was
defendant’s only prior sex offense, and defendant did not deny having
been convicted of that offense. “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 Beames, 100 AD3d 1163, 1164; People v
Hubel, 70 AD3d 1492, 1493). The court therefore properly determined
                                 -2-                  812
                                                KA 12-00990

that the override provision applied.




Entered:   July 19, 2013               Frances E. Cafarell
                                       Clerk of the Court
