People v Horton

People v Horton 2016 NY Slip Op 06276 Decided on September 29, 2016 Appellate Division, Third Department 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.

Decided and Entered: September 29, 2016
521056

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

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.

MEMORANDUM AND ORDER

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

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]). [*2]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.