Opinion
Ind No. 71935/22 No. 3041 No. 2023-00716
11-14-2024
The People of the State of New York, Respondent, v. Abraham Hernandez, Defendant-Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Rashad Moore of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Aiden Sanchez of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Rashad Moore of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Aiden Sanchez of counsel), for respondent.
Before: Kern, J.P., Kapnick, Kennedy, Higgitt, O'Neill Levy, JJ.
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 [2014]), based on the egregious nature of defendant's possession of child pornography (see People v Almonte, 175 A.D.3d 1203, 1203 [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 [1st Dept 2018], lv denied 32 N.Y.3d 905 [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 [1st Dept 2021], lv denied 36 N.Y.3d 913 [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 [1st Dept 2015], lv denied 25 N.Y.3d 910 [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 [1st Dept 2012], lv denied 19 N.Y.3d 801 [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).