        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

812
KA 13-01143
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES R. POLEUN, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Niagara County Court (Matthew J.
Murphy, III, J.), dated May 23, 2013. 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 is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk under the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.). Defendant failed to preserve for our
review his contention that County Court’s acceptance of his waiver of
appearance constituted a violation of due process (see People v Wall,
112 AD3d 900, 901; see also People v Warrington, 19 AD3d 881, 882; see
generally People v Charache, 9 NY3d 829, 830). In any event, we
conclude that defendant’s right to due process was not violated.
Defendant waived his right to be present at the SORA hearing when he
informed the court in writing that he did not wish to appear.
Defendant also signed a written waiver of that right, in which he
“ ‘was advised of the hearing date, of the right to be present at the
hearing, and that the hearing would be conducted in his . . .
absence’ ” (People v Ensell, 49 AD3d 1301, 1301, lv denied 10 NY3d
715; see People v Brooks, 308 AD2d 99, 104, lv denied 1 NY3d 502).

     Contrary to defendant’s further contention, we conclude that the
court properly granted the People’s request for an upward departure
from the presumptive level two risk, which was based on defendant’s
score on the risk assessment instrument, and assessed him as a level
three risk. An upward departure is warranted where, as here, “there
exists an aggravating . . . factor of a kind, or to a degree, not
otherwise adequately taken into account by the [risk assessment]
guidelines” (People v Zimmerman, 101 AD3d 1677, 1678 [internal
                                 -2-                           812
                                                         KA 13-01143

quotation marks omitted]; see People v Abraham, 39 AD3d 1208, 1209).
The record establishes that defendant was convicted of two
misdemeanors involving inappropriate conduct towards children
previously unknown to him prior to his conviction of possessing a
sexual performance by a child (Penal Law § 263.16). In addition,
defendant admitted that he took into his home two “runaways” who later
accused him of rape, and that his prior places of employment included
places frequented by children, such as roller skating rinks, video
game arcades, and child-themed restaurants. We therefore conclude
that “the risk of repeat offense is high and there exists a threat to
the public safety” (Correction Law § 168-l [6] [c]), thereby
warranting the upward departure to a level three risk (see People v
Ryan, 96 AD3d 1692, 1693, lv dismissed 20 NY3d 929; People v DeBiaso,
49 AD3d 1280, 1281, lv denied 10 NY3d 711).




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
