People v Rodriguez

People v Rodriguez 2017 NY Slip Op 01089 Decided on February 10, 2017 Appellate Division, Fourth 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 February 10, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
150 KA 15-01227

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

v

ISRAEL RODRIGUEZ, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), entered April 22, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant's contention, Supreme Court did not err in assigning him points under risk factors 3 (number of victims) and 7 (stranger relationship with victim) inasmuch as defendant is a child pornography offender (see People v Gillotti, 23 NY3d 841, 854-855; People v Graziano, 140 AD3d 1541, 1542, lv denied 28 NY3d 909; People v Wooten, 136 AD3d 1305, 1306). Defendant did not dispute the proof that he possessed pornographic images depicting three or more children, and he did not dispute that the victimized children portrayed in those images were strangers to him (see Graziano, 140 AD3d at 1542).

To the extent that defendant contends that he is entitled to a downward departure from his presumptive risk level, we note that he failed to preserve that contention for our review (see People v Gilbert, 78 AD3d 1584, 1585-1586, lv denied 16 NY3d 704), and we decline to exercise our own discretion to grant him that relief (cf. People v Santiago, 20 AD3d 885, 885-886).

Entered: February 10, 2017

Frances E. Cafarell

Clerk of the Court