People v Elkins

People v Elkins 2007 NY Slip Op 08598 [45 AD3d 1364] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Edward J. Elkins, Appellant.

—[*1] Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent.

Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered March 11, 2005. 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 be and the same hereby 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 ([SORA] Correction Law § 168 et seq.). Defendant waived his right to be present at the SORA hearing, assigned counsel did not appear on his behalf, and the SORA hearing was conducted in the absence of defendant and defense counsel. The day after the SORA hearing, defense counsel advised Supreme Court by letter that he was unable to attend the hearing because he was delayed in another court on another matter. In that letter, defense counsel also challenged the total risk factor score on the risk assessment instrument presumptively classifying defendant as a level three risk, including the assessment of points under three risk factors. Defense counsel did not, however, object on the ground that the court conducted the SORA hearing in his absence, nor did he request that the court reopen the hearing. Under those circumstances, we conclude that defendant failed to preserve for our review his contention that the court erred in conducting the SORA hearing in defense counsel's absence (see People v Warrington, 19 AD3d 881 [2005]; see also People v Tilley, 305 AD2d 1041 [2003], lv denied 100 NY2d 588 [2003]; see generally People v Charache, 9 NY3d 829, 830 [2007]). Present—Martoche, J.P., Centra, Peradotto, Green and Pine, JJ.