People v. Campbell

2019 NY Slip Op 9113

Opinion

People v Campbell (2019 NY Slip Op 09113)

People v Campbell

2019 NY Slip Op 09113

Decided on December 19, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2019
Friedman, J.P., Webber, Gesmer, Kern, JJ.

10627 30/14

[*1] The People of the State of New York, Respondent,

v

Kenneth Campbell, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.

Order, Supreme Court, Bronx County (Marc J. Whiten, J.), entered on or about December 16, 2016, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record sufficiently establishes that, by refusing to be transported to court from his place of incarceration, defendant waived or forfeited his right to be present at the hearing (see People v Reid, 49 AD3d 338, 339 [1st Dept 2008], lv denied 10 NY3d 713 [2008]). The court providently exercised its discretion in declining to adjourn the hearing. Notwithstanding defendant's absence, his counsel was able to litigate the downward departure issue.

Even assuming defendant's correct point score is 115, as he contends, rather than 130, as the court found, defendant remains a level three offender and, given the underlying facts, we perceive no basis for a downward departure or for further proceedings in that regard (see generally People v Gillotti, 23 NY3d 841 [2014])

We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 19, 2019

CLERK