Opinion
1448 KA 18–00177
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Robert J. CALEB, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal 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 contends that County Court's acceptance of his waiver of appearance constituted a violation of due process. Defendant failed to preserve that contention for our review because defendant's counsel did not raise any objection to the validity of the waiver and instead agreed to proceed with the hearing in defendant's absence after confirming that defendant had waived his appearance (see People v. Poleun , 26 N.Y.3d 973, 974–975, 18 N.Y.S.3d 586, 40 N.E.3d 563 [2015] ). In any event, we conclude that defendant's right to due process was not violated inasmuch as the record establishes that defendant "was advised of the [SORA] hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his ... absence," and defendant waived his right to be present by informing the court in writing that he did not wish to appear ( People v. Poleun , 119 A.D.3d 1378, 1379, 988 N.Y.S.2d 827 [4th Dept. 2014], affd 26 N.Y.3d 973, 18 N.Y.S.3d 586, 40 N.E.3d 563 [2015] [internal quotation marks omitted]; see People v. Ensell , 49 A.D.3d 1301, 1301, 852 N.Y.S.2d 862 [4th Dept. 2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008] ).
With respect to the merits, we reject defendant's contention that the People failed to present clear and convincing evidence to support the assessment of 15 points under risk factor 11 for defendant's history of drug abuse (see Correction Law § 168–n [3 ] ). Defendant acknowledged during the presentence investigation that he had smoked marihuana for several years and, despite his assertion that he had ceased regular use of that substance prior to the underlying offenses, the case summary and statements of the underage female victims established that defendant provided marihuana to the victims and repeatedly smoked it with them at his apartment during the course of his sexual misconduct against them (see People v. Kunz , 150 A.D.3d 1696, 1697, 53 N.Y.S.3d 788 [4th Dept. 2017], lv. denied 29 N.Y.3d 916, 2017 WL 3908167 [2017] ; People v. Palacios , 137 A.D.3d 761, 762, 26 N.Y.S.3d 351 [2d Dept. 2016] ; People v. Rodriguez , 134 A.D.3d 492, 492, 19 N.Y.S.3d 894 [1st Dept. 2015] ; People v. Filkins , 107 A.D.3d 1069, 1069–1070, 968 N.Y.S.2d 621 [3d Dept. 2013] ).