Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. 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.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ.
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 A.D.3d 1441, 1441–1442, 945 N.Y.S.2d 904, lv. denied19 N.Y.3d 812, 951 N.Y.S.2d 722, 976 N.E.2d 251; see People v. Young, 108 A.D.3d 1232, 1232, 969 N.Y.S.2d 372, lv. denied22 N.Y.3d 853, 976 N.Y.S.2d 447, 998 N.E.2d 1072, rearg. denied22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362, 2013 WL 6598723 [Dec. 17, 2013]; People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241). 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 A.D.3d 1604, 1605, 856 N.Y.S.2d 422, lv. denied10 N.Y.3d 717, 862 N.Y.S.2d 468, 892 N.E.2d 862; cf. People v. David W., 95 N.Y.2d 130, 138–140, 711 N.Y.S.2d 134, 733 N.E.2d 206; see generally People v. Montanez, 88 A.D.3d 1278, 1279, 930 N.Y.S.2d 380).
Contrary to defendant's further contention, “[t]he court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Sherard, 73 A.D.3d 537, 537, 903 N.Y.S.2d 3, lv. denied15 N.Y.3d 707, 2010 WL 3583171; see People v. Miller, 48 A.D.3d 774, 775, 854 N.Y.S.2d 138, lv. denied10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246; People v. Sanford, 47 A.D.3d 454, 454, 848 N.Y.S.2d 875, lv. denied10 N.Y.3d 707, 858 N.Y.S.2d 655, 888 N.E.2d 397). 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 A.D.3d 112, 123, 931 N.Y.S.2d 85, lv. denied18 N.Y.3d 803, 2012 WL 43762; see People v. Campbell, 98 A.D.3d 5, 13, 946 N.Y.S.2d 587, lv. denied20 N.Y.3d 853, 2012 WL 6116677). 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.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.