People v. Horton ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: September 29, 2016                   521056
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    LEVI HORTON,
    Appellant.
    ________________________________
    Calendar Date:   September 9, 2016
    Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
    __________
    Craig Meyerson, Latham, for appellant.
    P. David Soares, District Attorney, Albany (Brittany L.
    Grome of counsel), for respondent.
    __________
    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 USC § 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
    -2-                  521056
    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 AD3d 1270, 1271 [2016]; People v Goodwin,
    131 AD3d 1284, 1285 [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 AD3d at 1271; People v Goodwin, 131 AD3d at
    1285; People v Kemp, 130 AD3d 1132, 1133 [2015]). Consequently,
    this appeal is not properly before this Court and must be
    dismissed (see CPLR 5513, 5515 [1]; People v Cleveland, 139 AD3d
    at 1271; People v Fuller, 138 AD3d 1358, 1359 [2016]).
    McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur.
    ORDERED that the appeal is dismissed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 521056

Judges: McCarthy, Egan, Devine, Aarons, Ordered

Filed Date: 9/29/2016

Precedential Status: Precedential

Modified Date: 11/1/2024