People v Rodriguez

People v Rodriguez 2014 NY Slip Op 08245 Decided on November 25, 2014 Appellate Division, First 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 on November 25, 2014
Tom, J.P., Moskowitz, Manzanet-Daniels, Feinman, Gische, JJ.
12866 2013/11 12865

[*1] The People of the State of New York, Respondent,

v

Monserrate Rodriguez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Cheryl Andrada of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered May 22, 2012, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him to a term of two years, unanimously affirmed. Order, same court and Justice, entered on or about February 22, 2013, which adjudicated defendant a level three sexually violent predicate sex offender, pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Regardless of whether defendant validly waived his right to appeal from the judgment, we perceive no basis for reducing the 10-year term of postrelease supervision.

Turning to defendant's civil appeal from the sex offender adjudication, we find that the court properly applied the presumptive override for a prior felony sex crime conviction, and properly exercised its discretion in denying a downward departure (see People v Cintron, 12 NY3d 60, 7 [2009], cert denied sub nom. Knox v New York, 558 US 1011 [2009]). Although the predicate conviction that formed the basis for the override occurred many years ago, defendant's overall background demonstrated a propensity to commit sex crimes against children (see e.g. People v Jamison, 107 AD3d 531 [1st Dept 2013], lv denied 22 NY3d 852 [2013]; People v Poole, 105 AD3d 654 [1st Dept 2013], lv denied 21 NY3d 863 [2013]). We also note that defendant has also been convicted of failing to comply with sex offender registration requirements.

The court properly determined that it lacked discretion to decline to designate defendant a sexually violent offender and predicate sex offender. Because the crime of sexual abuse in the first degree is defined as a sexually violent offense under the Sex Offender Registration Act (Correction Law § 168-a [3][a][i]; Penal Law § 130.65), the court lacked discretion to decline to

designate defendant a sexually violent offender (see People v Bullock, __ AD3d __ [Appeal No. 12785, decided simultaneously herewith]; People v Faulkner, __ AD3d __ [Appeal No. 12914, decided simultaneously herewith]; People v Golliver, 97 AD3d 734 [2d Dept 2012], lv denied 19 NY3d 813 [2012]; People v Williams, 96 AD3d 421 [1st Dept 2012], lv denied 19 NY3d 813 [*2][2012]; People v Lockwood, 308 AD2d 640 [3d Dept 2003]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 25, 2014

CLERK