People v. Kemp

Appellate Division of the Supreme Court of New York

People v. Kemp

130 A.D.3d 1132, 12 N.Y.S.3d 394

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 2015

Docket520131

StatusPublished

Cited by13 cases

This text of 130 A.D.3d 1132 (People v. Kemp) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kemp, 130 A.D.3d 1132, 12 N.Y.S.3d 394 (N.Y. Ct. App. 2015).

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Opinion

Garry, J.

Appeal from a decision of the County Court of Washington County (McKeighan, J.), dated May 9, 2014, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted, upon his guilty plea, of possession of a sexual performance by a child and sentenced to 10 years of probation. The Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAJ) that presumptively classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). At the hearing, defendant stipulated to the RAJ score but requested a downward departure, which the People opposed. County Court adopted the RAI score, denied the requested downward departure and classified defendant as a risk level two sex offender. Defendant now appeals.

Pursuant to Correction Law § 168-n (3), County Court was required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” Such order must be in writing (see CPLR 2219 [a]; Siegel, NY Prac § 250 at 438-439 [5th ed 2011]) and “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a]; see People v *1133 Leopold, 13 NY3d 923, 924 [2010]; People v Smith, 11 NY3d 797, 798 [2008]). Here, the record does not reflect that a written court order was ever entered and filed. Although County-Court executed the standard form designating defendant’s risk level classification, this form is not identified as an order (see CPLR 5512 [a]) and does not contain the “so ordered” language (People v Joslyn, 27 AD3d 1033, 1035 [2006] [internal quotation marks omitted]; see People v Rogowski, 96 AD3d 1113, 1113 n [2012]). There is a reference to an order in the transcript, but no such document has been produced. Accordingly, the appeal must be dismissed, as it is not properly before this Court (see CPLR 5513, 5515 [1]; People v Laurange, 97 AD3d 995, 996 [2012]; Matter of Graziano v County of Albany, 12 AD3d 819, 820 [2004]).

Peters, P.J., Lahtinen and Devine, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Garry, J.

Appeal from a decision of the County Court of Washington County (McKeighan, J.), dated May 9, 2014, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted, upon his guilty plea, of possession of a sexual performance by a child and sentenced to 10 years of probation. The Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAJ) that presumptively classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). At the hearing, defendant stipulated to the RAJ score but requested a downward departure, which the People opposed. County Court adopted the RAI score, denied the requested downward departure and classified defendant as a risk level two sex offender. Defendant now appeals.

Pursuant to Correction Law § 168-n (3), County Court was required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” Such order must be in writing (see CPLR 2219 [a]; Siegel, NY Prac § 250 at 438-439 [5th ed 2011]) and “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a]; see People v *1133 Leopold, 13 NY3d 923, 924 [2010]; People v Smith, 11 NY3d 797, 798 [2008]). Here, the record does not reflect that a written court order was ever entered and filed. Although County-Court executed the standard form designating defendant’s risk level classification, this form is not identified as an order (see CPLR 5512 [a]) and does not contain the “so ordered” language (People v Joslyn, 27 AD3d 1033, 1035 [2006] [internal quotation marks omitted]; see People v Rogowski, 96 AD3d 1113, 1113 n [2012]). There is a reference to an order in the transcript, but no such document has been produced. Accordingly, the appeal must be dismissed, as it is not properly before this Court (see CPLR 5513, 5515 [1]; People v Laurange, 97 AD3d 995, 996 [2012]; Matter of Graziano v County of Albany, 12 AD3d 819, 820 [2004]).

Peters, P.J., Lahtinen and Devine, JJ., concur. Ordered that the appeal is dismissed, without costs.

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130 A.D.3d 1132, 12 N.Y.S.3d 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kemp-nyappdiv-2015.

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