SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1289
KA 13-01569
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHN W. BROWN, DEFENDANT-APPELLANT.
JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), dated August 8, 2013. The order determined that defendant
is a level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: Defendant appeals from an order adjudicating him a
level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). The record establishes, however, that
defendant consented to that adjudication after consulting with defense
counsel and, thus, “[t]he appeal must be dismissed as no appeal lies
from an order entered upon the consent of the appealing party” (People
v Welch, 30 AD3d 392, 393; see People v Dennis, 64 AD3d 760, 760). To
the extent that defendant contends that he consented to the order
because he was denied effective assistance of counsel, we note that
County Court has the “inherent power to relieve a party from a
judgment ‘for sufficient reason, in furtherance of justice’ ” (Matter
of Delfin A., 123 AD2d 318, 320, quoting Ladd v Stevenson, 112 NY 325,
332). Consequently, defendant’s remedy “is to move in [County] Court
to vacate the order, at which time he can present proof in support of
his allegations of [ineffective assistance of counsel, proof of] which
is completely absent from this record” (Matter of Farquhar v Pitt, 192
AD2d 806, 806; see e.g. People v Byrd, 57 AD3d 442, lv denied in part
and dismissed in part 12 NY3d 791 [appeal from order denying motion to
vacate prior order on ground of, inter alia, denial of right to
counsel]; see generally Matter of Hauser v Pruitt, 35 AD3d 740, 740;
Matter of Andresha G., 251 AD2d 1005, 1005).
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court