Opinion
2015-01-21
PEOPLE of State of New York, respondent, v. Henry SORTO, appellant.
Seymour W. James, Jr., New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jennifer Hagan of counsel; John M. Harras on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jennifer Hagan of counsel; John M. Harras on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated March 7, 2011, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant's contention that the Supreme Court violated his due process right to appear at his risk assessment hearing pursuant to the Sex Offender Registration Act (hereinafter SORA) ( seeCorrection Law § 168–n[3] ) when it conducted the hearing in his absence is unpreserved for appellate review, as the defendant's counsel, who represented him at the hearing, did not object to conducting the hearing in the defendant's absence ( see CPL 470.05 [2]; People v. Wall, 112 A.D.3d 900, 901, 977 N.Y.S.2d 394; People v. Warrington, 19 A.D.3d 881, 797 N.Y.S.2d 622). In any event, under the circumstances of this case, the defendant's contention is without merit, as he forfeited his right to be present at the hearing, and the Supreme Court properly proceeded with the hearing in his absence ( see People v. Wall, 112 A.D.3d at 901, 977 N.Y.S.2d 394; People v. Brooks, 308 A.D.2d 99, 763 N.Y.S.2d 86; cf. People v. Ginyard, 101 A.D.3d 1095, 958 N.Y.S.2d 154; People v. Jackson, 94 A.D.3d 961, 942 N.Y.S.2d 550).
The Supreme Court providently exercised its discretion in granting the People's application for an upward departure, particularly in light of the heinous nature of the underlying sex crime, which involved the sexual abuse of an 18–month–old infant ( see People v. Simmons, 121 A.D.3d 465, 466, 993 N.Y.S.2d 497; People v. Guasp, 95 A.D.3d 608, 944 N.Y.S.2d 112; People v. Wyatt, 89 A.D.3d 112, 123, 931 N.Y.S.2d 85). Contrary to the defendant's contention, the People provided clear and convincing evidence of aggravating factors not adequately taken into account by the SORA guidelines ( see People v. LaPorte, 119 A.D.3d 758, 989 N.Y.S.2d 309; People v. Faver, 113 A.D.3d 662, 663, 978 N.Y.S.2d 690; People v. Burch, 90 A.D.3d 1429, 1431, 936 N.Y.S.2d 351). RIVERA, J.P., HALL, AUSTIN and COHEN, JJ., concur.