People v. Horton

• Decision Date: 29 September 2016
• Citation: 37 N.Y.S.3d 923 (Mem),2016 N.Y. Slip Op. 06276,142 A.D.3d 1256
• Parties: The PEOPLE of the State of New York, Respondent, v. Levi HORTON, Appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1256

37 N.Y.S.3d 923 (Mem)

2016 N.Y. Slip Op. 06276

The PEOPLE of the State of New York, Respondent,

v.Levi HORTON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Sept. 29, 2016.

Craig Meyerson, Latham, for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE, CLARK and AARONS, JJ.

CLARK

, J.

Appeal from a decision of the County Court of Albany County (Herrick, J.), dated February 20, 2014, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2007, defendant pleaded guilty to possession of child pornography in satisfaction of a five-count indictment and was sentenced to 10 years in federal prison to be followed by 10 years of supervised release (see 18 U.S.C. § 2252A

[a][5][B] ). Upon his release, the Board of Examiners of Sex Offenders completed a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art. 6–C) that presumptively classified defendant as a risk level one sex offender, and recommended an upward departure to a risk level three classification. The People submitted a risk assessment instrument that presumptively classified defendant as a risk level three sex offender. Following a hearing, County Court found that defendant was a presumptive level two sex offender based upon a score of 95 points, but determined that an upward departure was warranted and classified him as a risk level three sex offender. Defendant now appeals.

County Court was required by statute 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]

), and it was further required that such order be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220[a] ; accord

People v. Cleveland, 139 A.D.3d 1270, 1271, 31 N.Y.S.3d 678 [2016] ; People v. Goodwin, 131 A.D.3d 1284, 1285, 15 N.Y.S.3d 896 [2015] ). The record here does not reflect that an order was ever issued or entered and filed. While the court executed a standard form designating defendant's risk level classification, that form is not identified as an order (see CPLR 5512[a] ) and does not contain “so ordered” language (see

People v. Cleveland, 139 A.D.3d at 1271, 31 N.Y.S.3d 678 ; People v. Goodwin, 131 A.D.3d at 1285, 15 N.Y.S.3d 896 ; People v. Kemp, 130 A.D.3d 1132, 1133, 12 N.Y.S.3d 394 [2015] ). Consequently, this appeal is not properly before this Court and must be dismissed (see CPLR 5513, 5515[1] ; People v. Cleveland, 139 A.D.3d at 1271, 31 N.Y.S.3d 678 ; People v. Fuller...