People v. Cleveland

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 519584
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
EDWARD CLEVELAND,
Appellant.
________________________________
Calendar Date: April 20, 2016
Before: Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.
__________
Jay L. Wilber, Public Defender, Binghamton (Nathan E.
Schwartzman of counsel), for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose
Parry of counsel), for respondent.
__________
Clark, J.
Appeal from a decision of the County Court of Broome County
(Smith, J.), dated June 26, 2014, which classified defendant as a
risk level III sex offender pursuant to the Sex Offender
Registration Act.
Defendant reportedly pleaded guilty to criminal charges and
was sentenced to a period of probation.1 The People completed a
risk assessment instrument in accordance with the Sex Offender
1
The record on appeal does not contain an accusatory
instrument or the plea minutes, or otherwise reflect the precise
crime(s) to which defendant reportedly entered a guilty plea.
-2- 519584
Registration Act (see Correction Law art 6-C [hereinafter SORA])
that presumptively classified defendant as a risk level I sex
offender (55 points), and requested an upward departure to a risk
level II classification. Following a two-day SORA hearing,2
County Court ruled that defendant should be classified as a risk
level III sex offender. Defendant now appeals.
By statute, County Court is required to "render an 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]), and such 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 Goodwin, 131 AD3d 1284,
1285 [2015]; People v Kemp, 130 AD3d 1132, 1132-1133 [2015]).
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 Goodwin, 131 AD3d at 1285; People
v Joslyn, 27 AD3d 1033, 1035 [2006]; see also CPLR 5512 [a]).3
Accordingly, this appeal is not properly before this Court and
dismissal is required (see CPLR 5513, 5515 [1]; People v Goodwin,
2
During the first day of the hearing, County Court
(Crawley, J.) heard arguments and, on the second day, June 26,
2014, County Court (Smith, J.) took the testimony of the People's
witness and rendered a decision from the bench. It is noted that
the risk assessment instrument signed by Justice Smith
classifying defendant as a risk level III sex offender bears a
date of June 13, 2014, the first hearing date.
3
We note that the minutes of the SORA hearing, which
defendant submitted to this Court but are not part of the record,
also do not constitute an order (see Correction Law § 168-n [3]).
While the final page of the minutes appears to have been filed
with the Court Clerk's office, it was not denominated an "order"
(CPLR 5512 [a]), was not signed by a judge and does not contain
"so ordered" language (see People v Joslyn, 27 AD3d at 1035).
Further, the minutes do not reflect that a SORA risk
classification order was ever issued by County Court or entered
(see CPLR 2220 [a]).
-3- 519584
131 AD3d at 1285; People v Kemp, 130 AD3d at 1132; People v
Laurange, 97 AD3d 995, 996 [2012]).
Lahtinen, J.P., McCarthy, Devine and Mulvey, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court