People v. Cleveland

• Decision Date: 19 May 2016
• Docket Number: 519584.
• Citation: 2016 N.Y. Slip Op. 03924,139 A.D.3d 1270,31 N.Y.S.3d 678
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward CLEVELAND, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1270

31 N.Y.S.3d 678

2016 N.Y. Slip Op. 03924

The PEOPLE of the State of New York, Respondent,

v.Edward CLEVELAND, Appellant.

519584.

Supreme Court, Appellate Division, Third Department, New York.

May 19, 2016.

Jay L. Wilber, Public Defender, Binghamton (Nathan E. Schwartzman of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, DEVINE, CLARK and MULVEY, JJ.

CLARK

, J.

Appeal from a decision of the County Court of Broome County (Smith, J.), dated June 26, 2014, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant reportedly pleaded guilty to criminal charges and was sentenced to a period of probation.¹ The People completed a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art. 6–C [hereinafter SORA] ) that presumptively classified defendant as a risk level I sex offender (55 points), and requested an upward departure to a risk level II classification. Following a two-day SORA hearing, County Court ruled that defendant should be classified as a risk level III sex offender. Defendant now appeals.

By statute, County Court is required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168–n [3

] ), and such order must be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220[a] ; see

People v. Goodwin, 131 A.D.3d 1284, 1285, 15 N.Y.S.3d 896 [2015] ; People v. Kemp, 130 A.D.3d 1132, 1132–1133, 12 N.Y.S.3d 394 [2015] ). Here, the record does not reflect that a written order was ever issued or entered and filed, and the risk assessment instrument does not contain “so ordered” language so as to constitute an appealable order (see

People v. Goodwin, 131 A.D.3d at 1285, 15 N.Y.S.3d 896 ; People v. Joslyn, 27 A.D.3d 1033, 1035, 811 N.Y.S.2d 807 [2006] ; see also CPLR 5512 [a] ).² Accordingly, this appeal is not properly before this Court and dismissal is required (see CPLR 5513, 5515[1] ; People v. Goodwin, 131 A.D.3d at 1285, 15 N.Y.S.3d 896 ; People v. Kemp, 130 A.D.3d at 1132, 12 N.Y.S.3d 394 ; People v. Laurange, 97 A.D.3d 995, 996, 948 N.Y.S.2d 567 [2012] ).

ORDERED that the appeal is dismissed, without costs.

LAHTINEN

, J.P., McCARTHY, DEVINE and MULVEY, JJ., concur.

1 The record on appeal does not contain an accusatory instrument or the plea minutes, or otherwise reflect the precise crime(s) to which defendant reportedly entered a guilty plea.

2 We note that the minutes of the SORA hearing, which defendant submitted to this Court but are not part of the record, also do not constitute an order (see Correction Law § 168–n[3]

). While the final page of the minutes appears to have been filed with the Court Clerk's office, it was not denominated an “order” (CPLR 5512[a] ), was not signed by a judge and does not contain “so ordered” language (see

People v. Joslyn, 27 A.D.3d at 1035, 811 N.Y.S.2d 807 ). Further, the minutes do not reflect that a SORA risk classification order was ever issued by County Court or entered (s...