        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

878
KA 14-00797
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CURTIS L. GAINEY, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (John L. DeMarco,
J.), entered March 14, 2014. The order determined that defendant is a
level one risk pursuant to the Sex Offender Registration Act.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following memorandum: Defendant
appeals from an order determining that he is a level one risk pursuant
to the Sex Offender Registration Act ([SORA] Correction Law § 168 et
seq.). At the SORA hearing, defendant asserted that County Court
(DeMarco, J.) lacked jurisdiction to proceed with the hearing on the
ground that the sentencing court (Marks, J.) failed to certify that he
was a sex offender, as required by Correction Law § 168-d (1) (a).
The court reserved decision on the issue whether it had jurisdiction
and proceeded with the hearing, indicating that it would rule on the
jurisdiction issue in its decision. The court, however, failed to
address that issue in its decision. We cannot deem the court’s
failure to address the issue as a determination that it rejected
defendant’s assertion that it lacked jurisdiction (see People v
McDonald, 125 AD3d 1280, 1280). Thus, even assuming, arguendo, that
the court’s determination that defendant is a level one risk
constitutes an implicit determination that it had jurisdiction to
assess a risk level, we cannot affirm the order on that basis because
the court did not expressly “decide that issue adversely to defendant”
(People v Stanley, 128 AD3d 1472, 1474; see People v Concepcion, 17
NY3d 192, 197-198; People v LaFontaine, 92 NY2d 470, 474, rearg denied
93 NY 849). We therefore hold the case, reserve decision and remit
the matter to County Court for a determination whether the failure of
the sentencing court to certify defendant as a sex offender as
required by Correction Law § 168-d (1) (a) deprived the court of
                               -2-                  878
                                              KA 14-00797

jurisdiction in this matter.




Entered:   July 2, 2015              Frances E. Cafarell
                                     Clerk of the Court
