SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
533
KA 12-01538
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
IFEOMA A. OKAFOR, 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 June 6, 2012. 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: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
County 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 Vaillancourt, 112 AD3d 1375, 1375-1376, lv
denied ___ NY3d ___ [Apr. 1, 2014]; see People v Bethune, 108 AD3d
1231, 1231-1232, lv denied 22 NY3d 853). “[D]efense 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” (Vaillancourt, 112 AD3d at 1376; 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).
Entered: May 9, 2014 Frances E. Cafarell
Clerk of the Court