People v. Lane

• Decision Date: 23 December 2021
• Docket Number: 531040
• Citation: 2021 NY Slip Op 07324
• Parties: The People of the State of New York, Respondent, v. Todd Lane, Appellant.
• Court: New York Supreme Court

2021 NY Slip Op 07324

The People of the State of New York, Respondent, v. Todd Lane, Appellant.

No. 531040

Supreme Court of New York, Third Department

December 23, 2021

Calendar Date: November 18, 2021

Shane A. Zoni, Public Defender, Hudson (Jessica Howser of counsel) for appellant.

David E. Woodin, Special Prosecutor, Catskill, for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

Garry P.J.

(1) Appeal from a decision of the County Court of Columbia County (Koweek, J.), dated July 10, 2019, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act, and (2) motion pursuant to CPL 460.30 (1) for an extension of time to file a notice of appeal.

Defendant pleaded guilty to an indictment charging him with rape in the first degree, criminal sexual act in the first degree and sexual abuse in the first degree and, in January 2010 received an aggregate sentence of 10 years in prison to be followed by 20 years of postrelease supervision (192 A.D.3d 1262, 1262-1263 [2021]). Following a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) prior to his release from prison, County Court, in a bench decision, denied defendant's request for a downward departure, classified him as a risk level two sex offender and designated him as a sexually violent offender. At the end of its bench decision, the court directed that the minutes be transcribed with a so-ordered provision and served upon counsel. Defendant filed a July 2019 notice of appeal from that risk level assessment; no transcript or other order had been signed at the time.

After this appeal was perfected, the People argued in their brief - as well as addressing the merits - that the appeal should be dismissed because the notice of appeal did not reference an appealable judgment or order, and no such written order existed. Defendant then obtained a so-ordered copy of the transcript, signed by County Court on April 16, 2021, and submitted it to the Columbia County Court Clerk's office. On April 19, 2021, counsel filed a document labeled an amended notice of appeal challenging the July 2019 SORA determination and "the corresponding order dated April 16, 2021." Defendant then moved in this Court for an extension of time to file a notice of appeal, pursuant to CPL 460.30. The People opposed, arguing that the CPL does not apply in this civil proceeding and the time to file a notice of appeal cannot be extended in these circumstances. The motion and the appeal are now before us.

This matter presents a challenging procedural quagmire, based upon errors which are, in some respects, unfortunately common. There is considerable confusion and repeated error relative to the proper recording of court orders containing SORA determinations. It is possible that these recurrent errors arise from the fact that these civil SORA proceedings and their accompanying procedures are often undertaken by officials more accustomed to performing duties in a manner consistent with the provisions of the CPL, rather than the CPLR. Considering the circumstances, we take this opportunity to address the requisite legal procedures in some depth, and we will also offer some extraordinary relief in this singular appeal.

"County Court is statutorily required to 'render an order setting forth its determination and the findings of fact and conclusions of law on which the [SORA] determinations are based'" (People v West, 193 A.D.3d 1127, 1128 [2021], quoting Correction Law § 168-n [3] [citations omitted]; see People v Porter, 178 A.D.3d 1159, 1160 [2019]; People v Scott, 157 A.D.3d 1070, 1071 [2018]). "The resulting order must be in writing and, further, must be 'entered and filed in the office of the clerk of the court where the action is triable'" (People v Scott, 157 A.D.3d at 1071, quoting CPLR 2220 [a] [internal quotation marks and citation omitted]; see CPLR 5016 [a]; People v Wassilie, 193 A.D.3d 1193, 1194 [2021]; People v Cann, 152 A.D.3d 828, 829 [2017]; People v Cleveland, 139 A.D.3d 1270, 1271 [2016]). The Legislature has designated the County Clerk as "clerk of the county court within his [or her] county" (County Law § 525 [1]; see CPLR 105 [e]; Mendon Ponds Neighborhood Assn. v Dehm, 98 N.Y.2d 745, 747 [2002]). Thus, where the CPLR refers to a "clerk" or the clerk of Supreme Court or County Court, it means the County Clerk (see CPLR 105 [e]; Mendon Ponds Neighborhood Assn. v Dehm, 98 N.Y.2d at 747). A judgment or order in a civil action or proceeding is deemed entered under the CPLR "when, after it has been signed by the clerk, it is filed by him [or her]" (CPLR 5016 [a]; see Olivaria v Lin & Son Realty Corp., 84 A.D.3d 423, 425 [2011]; see also CPLR 2220, 5017 [a]). Generally, "appeals from orders that have not been entered are subject to dismissal" (Matter of Ryan v Nolan, 134 A.D.3d 1259, 1261 n [2015], citing CPLR 2220 [a]; 5016 [a]; 5513 [a]; see People v West, 193 A.D.3d at 1128).

Despite the statutory requirement that the court render a written SORA "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]), the lack of such orders is a recurring problem (see e.g. People v Scott, 157 A.D.3d at 1071; People v Cann, 152 A.D.3d at 829; People v Cleveland, 139 A.D.3d at 1271; People v Kemp, 130 A.D.3d 1132, 1133 [2015]). In some cases, as here, the court states during a bench decision that a so-ordered provision will be provided on the transcript but that does not occur (see e.g. People v Wassilie, 193 A.D.3d at 1194). In others, the court signs a standard form designating the defendant's risk level classification without "so-ordered" language or specific findings and conclusions (see e.g. People v Lockrow, 161 A.D.3d 1492, 1493 [2018]). In each of these situations, this Court generally dismisses the appeal, as we must, because it is not properly before us due to the lack of an appealable order (see e.g. People v Wassilie, 193 A.D.3d at 1194; People v West, 193 A.D.3d at 1128; People v Cann, 152 A.D.3d at 829). This creates a confusing situation in which no proper order exists regarding the defendant's status under SORA (see Correction Law § 168-n [3]). ^[1]

After a civil motion is determined, the resulting order must be entered by the County Clerk (see CPLR 2220 [a]; County Law § 525 [1]). Generally, in any civil case, upon a clerk's entry of a written order, the prevailing party should serve a copy of the order, together with notice of entry, upon the losing party (see CPLR 2220 [b]; 5513 [a]; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2220:1 at 370 [2020 ed] [noting that "the practitioner would do well, after having won a motion, to file the requisite papers promptly"]). The losing party, once served with a copy of that entered order and notice of entry, has 30 days to take an appeal as of right (see CPLR 5513 [a]; see also Correction Law § 168-n [3]). Pursuant to SORA, "the district attorney, or his or her designee," is statutorily required to appear at the SORA hearing on behalf of the state and bears the burden of proving the facts supporting the risk level determination being sought (Correction Law § 168-n [3]). Thus, the People bear the responsibility of ensuring that a written SORA order is entered and that notice of entry, along with a copy of that written order, is served on the defendant.

In cases where no written SORA order exists, such as was initially true in this case, it is inconsistent for the People to fail to ensure that a written order was produced or entered, yet later seek dismissal of a defendant's appeal for lack of an appealable order. We recognize that, in cases where the People did not promptly seek entry of a written order, a defendant "who feels aggrieved by the [People's] failure to seek entry [of a SORA order] may have the [written order] entered and need not wait for the prevailing party to act" (Funk v Barry, 89 N.Y.2d 364, 368 n [1996]; see David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5016 at 503 [2007 ed]). ^[2] However, the failure of courts to issue proper written SORA orders, or of the People to ensure entry thereof, should not regularly become a burden on the defendants who are unsuccessful parties at SORA hearings - as we find it so frequently has.

Here defendant attempted to cure the lack of a written and entered order by obtaining a so-ordered copy of the transcript in April 2021 and submitting it to the County Court Clerk's office. Even that effort was unavailing. The written order in this matter does not contain a signature, stamp or other notation indicating that the County Clerk signed the order and then filed it so as to reflect proper entry (see CPLR 5016 [a]). This Court thus inquired of both the County Clerk and County Court Clerk to determine whether the written order was ever entered. In response to this inquiry, the County Court Clerk's office advised that the order was "deemed entered on April 16, 2021 when [that office] received it but it was never actually stamped [or signed]" as entered or received. The County Clerk, in turn, advised that a copy of the so-ordered transcript was attached as an exhibit to the amended notice of appeal; apparently, the original order was never submitted to that office for entry and might be still in the possession of the County Court Clerk. ^[3] As the County Clerk has not signed and then filed the April 16, 2021 written order, it has not been properly entered by "the office of the clerk of the court where the action is triable" (CPLR 2220 [a]; see CPLR 105 [e]; 5016 [a]; County Law § 525 [1]; Matter of...