People v. Head

Full title: The PEOPLE of the State of New York, Respondent, v. Terrance HEAD…

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

Date published: Jul 19, 2018

2018 N.Y. Slip Op. 5379 (N.Y. App. Div. 2018)

2018 N.Y. Slip Op. 5379

Opinion

521938

07-19-2018

The PEOPLE of the State of New York, Respondent, v. Terrance HEAD, Appellant.

Paul R. Corradini, Elmira, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Mary Theresa Northrup of counsel), for respondent.

Rumsey, J.

Paul R. Corradini, Elmira, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Mary Theresa Northrup of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from a decision of the County Court of Chemung County (Hayden, J.), dated May 8, 2015, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the third degree and was sentenced to 1½ years in prison followed by three years of postrelease supervision. In anticipation of defendant's release from prison, a risk assessment instrument was submitted by the People that presumptively classified him as a risk level two sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6–C). Following a hearing, County Court rejected defendant's challenge to certain assessed points and adjudicated him a risk level two sex offender. Defendant appeals. County Court is required to "render an order setting forth its determinations and findings of fact and conclusions of law on which the determinations are based" ( Correction Law § 168–n[3] ), and that 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. Cann, 152 A.D.3d 828, 829, 58 N.Y.S.3d 697 [2017] ; People v. Horton, 142 A.D.3d 1256, 1257, 37 N.Y.S.3d 923 [2016] ). 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. Cann, 152 A.D.3d at 829, 58 N.Y.S.3d 697 ; People v. Horton, 142 A.D.3d at 1257, 37 N.Y.S.3d 923 ; see also CPLR 5512[a] ). As such, this appeal is not properly before this Court and dismissal is required (see CPLR 5513, 5515[1] ; People v. Cleveland, 139 A.D.3d 1270, 1271, 31 N.Y.S.3d 678 [2016] ).

ORDERED that the appeal is dismissed, without costs.

McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.