Opinion
2014-11-25
The PEOPLE of the State of New York, Respondent, v. Monserrate RODRIGUEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Cheryl Andrada of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Cheryl Andrada of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
, J.P., MOSKOWITZ, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered May 22, 2012, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him to a term of two years, unanimously affirmed. Order, same court and Justice, entered on or about February 22, 2013, which adjudicated defendant a level three sexually violent predicate sex offender, pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Regardless of whether defendant validly waived his right to appeal from the judgment, we perceive no basis for reducing the 10–year term of post-release supervision.
Turning to defendant's civil appeal from the sex offender adjudication, we find that the court properly applied the presumptive override for a prior felony sex crime conviction, and properly exercised its discretion in denying a downward departure ( see People v. Cintron, 12 N.Y.3d 60, 7, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert. denied sub nom. Knox v. New York, 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ). Although the predicate conviction that formed the basis for the override occurred many years ago, defendant's overall background demonstrated a propensity to commit sex crimes against children ( see e.g. People v. Jamison, 107 A.D.3d 531, 966 N.Y.S.2d 778 [1st Dept.2013], lv. denied22 N.Y.3d 852, 975 N.Y.S.2d 385, 997 N.E.2d 1236 [2013]; People v. Poole, 105 A.D.3d 654, 963 N.Y.S.2d 259 [1st Dept.2013], lv. denied21 N.Y.3d 863, 972 N.Y.S.2d 220, 995 N.E.2d 183 [2013] ). We also note that defendant has also been convicted of failing to comply with sex offender registration requirements.
The court properly determined that it lacked discretion to decline to designate defendant a sexually violent offender and predicate sex offender. Because the crime of sexual abuse in the first degree is defined as a sexually violent offense under the Sex Offender Registration Act (Correction Law § 168–a [3][a][i]; Penal Law § 130.65), the court lacked discretion to decline to designate defendant a sexually violent offender ( see People v. Bullock, ––– A.D.3d ––––, 997 N.Y.S.2d 396, 2014 WL 6634967 [Appeal No. 12785, decided simultaneously herewith]; People v. Faulkner, 122 A.D.3d 539, 997 N.Y.S.2d 410 [Appeal No. 12914, decided simultaneously herewith]; People v. Golliver, 97 A.D.3d 734, 948 N.Y.S.2d 427 [2d Dept.2012], lv. denied19 N.Y.3d 813, 2012 WL 4074154 [2012]; People v. Williams, 96 A.D.3d 421, 945 N.Y.S.2d 305 [1st Dept.2012], lv. denied19 N.Y.3d 813, 2012 WL 4074334 [2012]; People v. Lockwood, 308 A.D.2d 640, 764 N.Y.S.2d 290 [3d Dept.2003] ).