PEOPLE v. GARCIA (2023)

On August 29, 2023, the defendant, Edwin Garcia, represented by Attorney Jerome Mayersak, Esq., personally appeared before the Court. The People were represented by Assistant District Attorney Veronica E. Fox, Esq. At such appearance, the defendant waived his right to be prosecuted by an indictment and consented to be prosecuted by a Superior Court Information (hereinafter “SCI”). The SCI charged the defendant with:

Count (1) Predatory Sexual Assault Against a Child, a class A-II violent felony, in violation of Penal Law 130.96;

Count (2) Rape in the First Degree, a class B violent felony, in violation of Penal Law 130.35(3);

Count (3) Aggravated Sexual Abuse in the Second Degree, a class C violent felony, in violation of Penal Law 130.67(1)(c); and

Count (4) Sexual Abuse in the First Degree, a class D violent felony, in violation of Penal Law 130.65(3).

On the same date, the defendant entered a guilty plea to Count II, Rape in the First Degree, in full satisfaction of all charges, pursuant to a negotiated written agreement between the District Attorney and the defendant entitled “Plea Memorandum” (hereinafter “plea bargain”). A conviction for Rape in the First Degree carries a mandatory determinate period of incarceration, in whole or half years, of anywhere between five years and twenty-five years, followed by a mandatory period of post-release supervision of anywhere between five and twenty years. Under the terms of the plea bargain in this case, the prosecutor agreed to cap the sentencing recommendation at a determinate period of incarceration of 15 years, followed by a period of post-release supervision of 15 years. Under the plea bargain, the defendant was free to recommend any legal sentence, the minimum permissible being 5 years of incarceration.

Had the defendant been convicted of Count I, Predatory Sexual Assault Against a Child, supra, either as the result of a trial or as the result of a different plea bargain, he would have faced a mandatory indeterminate sentence of imprisonment, the minimum of which would have been 10 years to life, and the maximum of which would have been 25 years to life.

The Court declined to commit to issuing any particular sentence in advance of sentencing and remained free to impose any legal sentence for Rape in the First Degree, the offense to which the defendant pleaded guilty pursuant to the terms of the plea bargain.

This case involves the events May 21, 2023, during which the defendant, then a 65-year-old man, raped a six-year-old girl in the Town of Ulysses, County of Tompkins. As the child's mother approached a basement bedroom in an effort to locate her daughter during a social gathering, she could hear the child yelling, “No!” and “Stop It!” As the child's mother came around a corner, she observed the defendant exiting the bedroom with his pants and underwear pulled down and his penis out. The child told her mother, “I was telling him to stop, I was telling him to stop. It hurt, but he didn't stop.”

Today, on December 12, 2023, the sentencing was held. The Court has considered the Tompkins County Probation Department's Pre-Sentencing Investigation. The Court has received, reviewed, and considered defendant's sentencing memorandum prepared by the Center for Community Alternatives (CCA), dated December 8, 2023. The People recommended a sentence of 15 years followed by 15 years post-release supervision. The People argued that the defendant has shown no remorse and his claims of dementia are devoid of record support and demonstrate that the defendant has failed to take responsibility for this crime. The defense requested a sentence of seven years. The defense argued the existence of mitigating factors, in that the defendant is 66 years old, he has no previous criminal history, he is remorseful, and the defendant's crime can be explained and excused because of possible dementia. Defendant in his PSI interview stated he had consumed three to four beers and was intoxicated. Defendant told the probation officer that when he was with the six-year-old child in the basement bedroom, she told him that her vagina itched and she pulled her own pants down. Defendant initially digitally penetrated the child and thereafter raped her. Appallingly, the defendant, blaming the child, told probation that the child didn't resist his advances. When discovered by the child's mother, the defendant was dragged upstairs by others and the child's father began to beat the defendant until the police arrived. At sentencing, the Court also heard from the mother and the father of the child. The Court also heard from the defendant.

There are simply no mitigating factors here. The Court is in agreement with the People that the CCA defense memorandum suggesting that defendant may possibly have some form of dementia is speculative and devoid of any factual basis. The Court noted that defendant failed to take any responsibility at sentencing and instead called the mother of the child victim a liar.

The Court is impressed at the profound courage the mother and father have demonstrated throughout these proceedings. Through her parents, the Court has heard the voice of the six-year-old child who was brutally victimized by the defendant.

The Court cannot go along with the seven-year sentence recommended by defense counsel, nor can it go along with the 15-year sentence recommended by the People. This judge would simply have no legitimate response to this 6-year-old child, when she is grown, were she to ask the Court, “What mitigating circumstance existed to warrant any leniency to the man who raped me when I was six years old?”

Some crimes are so horrific, so heinous, that once that line has been crossed, the Court can only focus on retribution for the victim and the future safety and protection of our community. The Court must ensure that this defendant never has the opportunity again to commit such unspeakable acts against an innocent child. And, this Court must also send a message to anyone in this community who would commit a sexual assault against a child. They will face the most extreme consequences before this sentencing court.

The Court must impose a sentence that is commensurate with the heinous crime the defendant committed.

As such it is hereby:

ORDERED that the defendant shall serve the maximum sentence of 25 years of imprisonment followed by 20 years of post-release supervision; and it is further

ORDERED that the defendant shall stay away from the victim and her immediate family members per the separate Final Order of Protection issued herewith; and it is further

ORDERED that the defendant shall not have any contact with children under the age of 18; and it is further

ORDERED that the defendant will be required to register as a sex offender; and it is further

ORDERED that the defendant shall pay all mandatory surcharges.

Scott A. Miller, J.