Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. John W. BROWN, Defendant–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM: Defendant appeals from an order adjudicating him a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). The record establishes, however, that defendant consented to that adjudication after consulting with defense counsel and, thus, " [t]he appeal must be dismissed as no appeal lies from an order entered upon the consent of the appealing party" ( People v. Welch, 30 A.D.3d 392, 393, 816 N.Y.S.2d 565 ; see People v. Dennis, 64 A.D.3d 760, 760, 882 N.Y.S.2d 658 ). To the extent that defendant contends that he consented to the order because he was denied effective assistance of counsel, we note that County Court has the "inherent power to relieve a party from a judgment ‘for sufficient reason, in furtherance of justice’ " ( Matter of Delfin A., 123 A.D.2d 318, 320, 506 N.Y.S.2d 215, quoting Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842 ). Consequently, defendant's remedy "is to move in [County] Court to vacate the order, at which time he can present proof in support of his allegations of [ineffective assistance of counsel, proof of] which is completely absent from this record" (Matter of Farquhar v. Pitt, 192 A.D.2d 806, 806, 596 N.Y.S.2d 484 ; see e.g. People v. Byrd, 57 A.D.3d 442, 870 N.Y.S.2d 284, lv. denied in part and dismissed in part 12 N.Y.3d 791, 879 N.Y.S.2d 37, 906 N.E.2d 1070 [appeal from order denying motion to vacate prior order on ground of, inter alia, denial of right to counsel]; see generally Matter of Hauser v. Pruitt, 35 A.D.3d 740, 740, 824 N.Y.S.2d 909 ; Matter of Andresha G., 251 A.D.2d 1005, 1005, 674 N.Y.S.2d 226 ).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.