People v. Horne

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.