THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ISRAEL RODRIGUEZ DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ISRAEL RODRIGUEZ, DEFENDANT–APPELLANT.

KA 15–01227

Decided: February 10, 2017

PRESENT:  SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 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.

MEMORANDUM AND ORDER

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).

Frances E. Cafarell

Clerk of the Court