PEOPLE v. HERNANDEZ (2024)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about January 26, 2023, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]), based on the egregious nature of defendant's possession of child pornography (see People v. Almonte, 175 A.D.3d 1203, 1203, 106 N.Y.S.3d 863 [1st Dept. 2019]).  Defendant possessed over 600 depictions of children being sexually abused, including videos of adult men sexually assaulting toddlers and an infant, and his “interest in this abhorrent type of pornography demonstrates a danger to children” (People v. Vitiello, 158 A.D.3d 585, 585, 68 N.Y.S.3d 882 [1st Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4440827 [2018]).  Moreover, “[d]efendant's conduct did not consist of mere possession of child pornography” (People v. Scott E., 190 A.D.3d 501, 501, 135 N.Y.S.3d 827 [1st Dept. 2021], lv denied 36 N.Y.3d 913, 2021 WL 1805323 [2021]), given the evidence that, among other things, he directly engaged a 13–year–old child in sexually explicit internet chats, sent her videos of him masturbating, and surreptitiously recorded her engaged in sexual activity (see People v. Macchia, 126 A.D.3d 458, 461, 5 N.Y.S.3d 392 [1st Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605144 [2015]).

Any mitigating factors identified by defendant, including that he was not charged with any new crimes during the four years he spent in the community under federal supervision (see People v. Cabrera, 91 A.D.3d 479, 479, 937 N.Y.S.2d 14 [1st Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500098 [2012]), were outweighed by aggravating factors demonstrating a risk of harm to children, including factors specified in the 2012 position statement on child pornography of the Board of Examiners of Sex Offenders (see Scott E., 190 A.D.3d at 501, 135 N.Y.S.3d 827).