People v. Fitzgerald

249 A.D.2d 630, 671 N.Y.S.2d 766, 1998 N.Y. App. Div. LEXIS 3895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1998
• Status: Published

Opinion

—Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered August 19, 1996, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Following the imposition of the sentence upon defendant’s plea of guilty to the crime of sexual abuse in the first degree, County Court, pursuant to the Sex Offender Registration Act (hereinafter Megan’s Law, Correction Law art 6-C), conducted a risk level determination hearing, designating defendant a level two sex offender. Defendant now appeals from the judgment of conviction, intending to challenge the constitutionality of Megan’s Law. On appeal from a judgment of conviction we may consider and determine any question of law or issue of fact arising from the underlying criminal proceeding (CPL 470.15 [1]). The application of this statute here precludes our consideration of the constitutionality of Megan’s Law on this appeal since the risk level determination was not part of the criminal proceeding (see, People v Stevens, 91 NY2d 270). We further note there is no statutory right of appeal from a risk level determination (supra).

Therefore, inasmuch as the record discloses that defendant entered a knowing, voluntary and intelligent plea of guilty and was sentenced in accordance with the negotiated plea agreement, we shall affirm the judgment and grant defense counsel’s application for leave to withdraw (see, People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).

Mikoll, J. P., Crew III, White, Yesawich Jr. and Spain, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.