Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Israel RODRIGUEZ, Defendant–Appellant.
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.
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:
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 N.Y.3d 841, 854–855, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Graziano, 140 A.D.3d 1541, 1542, 35 N.Y.S.3d 739, lv. denied 28 N.Y.3d 909, 2016 WL 6840021 ; People v. Wooten, 136 A.D.3d 1305, 1306, 24 N.Y.S.3d 550 ). 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 A.D.3d at 1542, 35 N.Y.S.3d 739 ).
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 A.D.3d 1584, 1585–1586, 910 N.Y.S.2d 808, lv. denied 16 N.Y.3d 704, 2011 WL 446506 ), and we decline to exercise our own discretion to grant him that relief (cf. People v. Santiago, 20 A.D.3d 885, 885–886, 798 N.Y.S.2d 612 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, and NEMOYER, JJ., concur.