PEOPLE v. WEST (2021)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Schenectady County (Sypniewski, J.), dated August 6, 2019, which denied defendant's application pursuant to Correction Law § 168–o (2) for reclassification of his sex offender risk level status.

In 1986, defendant was convicted upon his guilty plea of the reduced charge of attempted rape in the first degree in satisfaction of a four-count indictment (140 A.D.2d 852, 529 N.Y.S.2d 41 [1988]).  While on parole, the Sex Offender Registration Act (see Correction Law art 6–C) was enacted and, in 1998, he was classified as a risk level three sex offender.¹  In 2004, following a hearing, defendant was redetermined to be a risk level three sex offender.  In 2017, he made a pro se motion to modify his risk level classification from a risk level three to a risk level one, pursuant to Correction Law § 168–o (2).  Defendant, represented by counsel, later changed the modification request, seeking a risk level two designation.  An updated recommendation from the Board of Examiners of Sex Offenders opposed the modification, as did the People.  Following a hearing, County Court denied defendant's request for a modification.  Defendant appeals.

County Court is statutorily 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];  see People v. Johnson, 179 A.D.3d 1159, 1160, 113 N.Y.S.3d 618 [2020];  People v. Horton, 142 A.D.3d 1256, 1257, 37 N.Y.S.3d 923 [2016]), which “must be in writing” (People v. Scott, 157 A.D.3d 1070, 1071, 68 N.Y.S.3d 594 [2018] [internal quotation marks and citation omitted]).  Moreover, the 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. Johnson, 179 A.D.3d at 1160, 113 N.Y.S.3d 618;  People v. Cleveland, 139 A.D.3d 1270, 1271, 31 N.Y.S.3d 678 [2016]).  The record before this Court contains a written decision/order dated August 6, 2019 signed by County Court which bears a date stamp and notation that it was “Received by _,” but the order does not reflect that it was entered and filed (see People v. Lockrow, 161 A.D.3d 1492, 1493, 78 N.Y.S.3d 736 [2018]).²  Although the court indicated at the end of the hearing that its bench decision would “constitute the decision and order of the [c]ourt,” “a bench decision is ․ no[t] an appealable paper” (People v. Scott, 157 A.D.3d at 1071, 68 N.Y.S.3d 594;  see People v. Cleveland, 139 A.D.3d at 1271 n. 2, 31 N.Y.S.3d 678).  Accordingly, the appeal is not properly before us and must be dismissed (see CPLR 5513, 5515[1];  People v. Kemp, 130 A.D.3d 1132, 1133, 12 N.Y.S.3d 394 [2015];  People v. Davis, 130 A.D.3d 1131, 1132, 10 N.Y.S.3d 918 [2015]).

ORDERED that the appeal is dismissed, without costs.

FOOTNOTES

1.   Defendant was further convicted in 1997 of rape in the first degree and other crimes and sentenced to an aggregate prison term of 25 years to life (People v. West, 257 A.D.2d 767, 684 N.Y.S.2d 24 [1999], lv denied 93 N.Y.2d 880, 689 N.Y.S.2d 442, 711 N.E.2d 656 [1999]) but, according to the People, a SORA risk level classification has not been issued on those crimes.

2.   Although County Court's form order states that “the Court hereby grants the [p]etition of the [d]efendant,” on the next line, it states that “[d]efendant's risk factor is hereby not modified from a [risk l]evel 3,” and the court's bench decision indicates that it was denying the application for reclassification.

Garry, P.J.

Lynch, Aarons and Colangelo, JJ., concur.