This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 128
The People &c.,
            Respondent,
        v.
James R. Poleun,
            Appellant.




          Joseph G. Frazier, for appellant.
          Laura T. Bittner, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed,
without costs.
          Defendant pleaded guilty to one count of possession of
a sexual performance by a child (Penal Law § 263.16), in full

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satisfaction of the charges against him.   He was sentenced to an
indeterminate term of 1 and 1/3 to 4 years.
           As defendant neared his expected release, the Board of
Examiners of Sex Offenders (the Board) prepared a Risk Assessment
Instrument (RAI) assessing him 100 points - a presumptive level
two classification - but recommended an upward departure to a
risk level three designation.   A hearing on defendant's
classification was scheduled and defendant was assigned counsel.
           Prior to the hearing, County Court had received two
letters from defendant stating that he did not wish to attend.
In one of the letters, defendant expressed a fear that, if he was
transferred from Great Meadow Correctional Facility where he was
presently incarcerated to the Attica Correctional Facility in
anticipation of his hearing, he would suffer personal injury at
the hands of the correction officers.   He further stated that he
explained these fears to his lawyer and that he was hopeful that
his lawyer would address the things he believed were wrong in the
RAI.
           At the hearing, defense counsel acknowledged that his
office had spoken to defendant regarding his absence and counsel
handed the court a waiver of appearance executed by defendant.
With defense counsel's consent and defendant's waiver of
appearance, the court proceeded with the hearing in defendant's
absence.   County Court granted the People's request for an upward
departure and adjudicated defendant a level three sex offender.


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                                    - 3 -                           No. 128

Defendant appealed, arguing, among other things, that his waiver
of appearance was not made knowingly, intelligently, and
voluntarily.
            We agree with the Appellate Division that defendant
failed to preserve the challenge to his waiver of appearance.
Defense counsel, who represented defendant at the SORA hearing,
did not raise any objection to the validity of defendant's waiver
of appearance.    Rather, at the hearing, he provided the court
with an executed waiver and agreed to proceed with the hearing in
defendant's absence.      We further reject defendant's contention
that this is one of the "rare case[s]" in which preservation is
not required (cf. People v Lopez, 71 NY2d 662, 666 [1988]).
            Defendant's remaining contentions are without merit.
*   *   *     *   *   *     *   *    *      *   *   *   *   *   *     *   *
Order affirmed, without costs, in a memorandum. Chief Judge
Lippman and Judges Pigott, Rivera, Abdus-Salaam and Stein concur.
Judge Fahey took no part.

Decided October 15, 2015




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