People v. Horne

61 A.D.3d 945, 876 N.Y.S.2d 898

Opinion

Appeal by the defendant from an order of the County Court, Westchester County (Loehr, J.), dated July 10, 2008, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant was designated a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C) based on an override for a prior conviction for a felony sex crime—promoting a sexual performance by a child. The defendant’s contention that the override was improperly applied because that offense is not a “sex crime” is without merit. In relevant part, Correction Law § 168-a (2) defines a “sex offense” to include any offense under article 263 of the Penal Law. Promoting a sexual performance by a child is an offense under Penal Law § 263.15 (see People v Johnson, 11 NY3d 416 [2008]). Thus, the defendant was properly designated a level three sex offender. Rivera, J.P., Balkin, Leventhal and Lott, JJ., concur.