Opinion
526395
01-02-2020
The PEOPLE of the State of New York, Respondent, v. Matthew JOHNSON, Appellant.
Kelly L. Egan, Rensselaer, for appellant. Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.
Kelly L. Egan, Rensselaer, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a decision of the County Court of Tompkins County (Rowley, J.), entered January 5, 2018, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
In December 2010, defendant pleaded guilty to assault in the first degree and attempted criminal sexual act in the first degree stemming from a violent attack on his then-pregnant girlfriend and was sentenced to a prison term of nine years followed by a period of postrelease supervision. In anticipation of defendant's release from prison, a risk assessment instrument was submitted by the Board of Examiners of Sex Offenders that presumptively classified defendant as a risk level two sex offender. The Board, however, strongly recommended an upward departure to a risk level three classification based upon the depraved indifference shown toward the victim and unborn child during the assault, his history of violence toward women, the extent of the victim's injuries and his "deep-seated feelings of abandonment" by his mother that contribute to his domestic violence behavior. Following a hearing at which the People advocated for an upward departure, County Court granted the request and classified defendant as a risk level three sex offender with a sexually violent offender designation. Defendant appeals.
It is a statutory requirement that County Court "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] ; see People v. Head, 163 A.D.3d 1296, 1297, 77 N.Y.S.3d 591 [2018] ). That written order then 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. Scott, 157 A.D.3d 1070, 1071, 68 N.Y.S.3d 594 [2018] ).
Although the record before us contains a decision of County Court that sets forth its findings of fact and conclusions of law, the court did not issue a written order and the risk assessment instrument does not contain the "so ordered" language so as to constitute an appealable order. Absent any order by the court, this appeal is not properly before us and must be dismissed (see People v. Head, 163 A.D.3d 1296 at 1297, 77 N.Y.S.3d 591 ; People v. Lockrow, 161 A.D.3d 1492, 1493, 78 N.Y.S.3d 736 [2018] ; People v. Scott, 157 A.D.3d at 1071, 68 N.Y.S.3d 594 ; People v. Cann, 152 A.D.3d 828, 829, 58 N.Y.S.3d 697 [2017] ).
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the appeal is dismissed, without costs.