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People v. Horne

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 28, 2009

PEOPLE OF STATE OF NEW YORK, ETC., RESPONDENT,
v.
WAYNE HORNE, APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL & PLUMMER E. LOTT, JJ.

DECISION & ORDER

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 article 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 crime" 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). Thus, the defendant was properly designated a level three sex offender.

RIVERA, J.P., BALKIN, LEVENTHAL and LOTT, JJ., concur.

20090428

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