People v. Warrington

Mercure, J.

Appeal from an order of the County Court of Saratoga County (Scarano, Jr., J.), entered April 16, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted, upon his plea of guilty, of rape in the first degree and was sentenced in October 1982, as a second violent felony offender, to a prison term of I2V2 to 25 years. In anticipation of his release from incarceration, the Board of Examiners of Sex Offenders recommended that defendant be classified as a level III risk and issued a case summary detailing defendant’s crime. While defendant was still incarcerated, County Court sent him a written notice of the date and time of the hearing that would be held to determine his sex offender risk level, along with a copy of the Board’s recommendation.

At the hearing, County Court confirmed that defendant had been notified of the proceeding and noted that “the facility [where defendant was then incarcerated] did send back a reply indicating that [defendant] did not wish to appear.” Defendant’s attorney did not dispute County Court’s statement that defendant had been notified. County Court adopted the Board’s assessment and declared defendant a risk level III sex offender (see Correction Law § 168-n [3]). Defendant now appeals.

Defendant contends that County Court proceeded with the hearing in his absence without verifying that he knowingly and voluntarily waived his right to be present. He specifically argues that there is no indication in the record that he personally received the notice of the proceeding. However, as no objection was raised on this ground in County Court, the claim is unpreserved for appellate review (see People v Campbell, 279 AD2d 715, 716 [2001]), and we decline to exercise our discretion to reach the issue in this case.

Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.