People v. Kemp

• Decision Date: 02 July 2015
• Docket Number: 520131
• Parties: The PEOPLE of the State of New York, Respondent, v. Adam D. KEMP, Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1132

12 N.Y.S.3d 394

2015 N.Y. Slip Op. 05746

The PEOPLE of the State of New York, Respondent

v.Adam D. KEMP, Appellant.

520131

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

July 2, 2015.

Martin J. McGuinness, Saratoga Springs, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and DEVINE, JJ.

Opinion

GARRY, J.

Appeal from a decision of the County Court of Washington County (McKeighan, J.), dated May 9, 2014, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted, upon his guilty plea, of possession of a sexual performance by a child and sentenced to 10 years of probation. The Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) that presumptively classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C). At the hearing, defendant stipulated to the RAI score but requested a downward departure, which the People opposed. County Court adopted the RAI score, denied the requested downward departure and classified defendant as a risk level II sex offender. Defendant now appeals.

Pursuant to Correction Law § 168–n(3), County Court was required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” Such order must be in writing (see CPLR 2219[a] ; Siegel, N.Y. Prac. § 250 at 438 –439 [5th ed. 2011] ) and “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220[a] ; see People v. Leopold,

13 N.Y.3d 923, 924, 895 N.Y.S.2d 302, 922 N.E.2d 890 [2010] ; People v. Smith, 11 N.Y.3d 797, 798, 868 N.Y.S.2d 569, 897 N.E.2d 1050 [2008] ). Here, the record does not reflect that a written court order was ever entered and filed. Although County Court executed the standard form designating defendant's risk level classification, this form is not identified as an order (see CPLR 5512[a] ) and does not contain the “so ordered” language (People v. Joslyn, 27 A.D.3d 1033, 1035, 811 N.Y.S.2d 807 [2006] ; see People v. Rogowski, 96 A.D.3d 1113, 1113 n., 945 N.Y.S.2d 810 [2012] ). There is a reference to an order in the transcript, but no such document has been produced. Accordingly, the appeal must be dismissed, as it is not properly before this Court (see CPLR 5513, 5515[1] ; People v. Laurange, 97 A.D.3d 995, 996, 948 N.Y.S.2d 567 [2012] ; Matter of Graziano v. County of Albany, 12 A.D.3d 819, 820, 783 N.Y.S.2d 893 [2004] ).

ORDERED that the appeal is dismissed, without costs.

PETERS, P.J., LAHTINEN and DEVINE, JJ., concur.