People v. Rodriguez

122 A.D.3d 538, 997 N.Y.S.2d 409

Opinion

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 postrelease 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 NY3d 60, 70 [2009], cert denied 558 US 1011 [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 AD3d 531 [1st Dept 2013], lv denied 22 NY3d 852 [2013]; People v Poole, 105 AD3d 654 [1st Dept 2013], lv denied 21 NY3d 863 [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]; Fenal Law § 130.65), the court lacked discretion to decline to designate defendant a sexually violent offender (see People v Bullock, 122 AD3d —, 2014 NY Slip Op 08265 [2014] [decided simultaneously herewith]; People v Faulkner, 122 AD3d 539 [2014] [decided simultaneously herewith]; People v Golliver, 97 AD3d 734 [2d Dept 2012], lv denied 19 NY3d 813 [2012]; People v Williams, 96 AD3d 421 [1st Dept 2012], lv denied 19 NY3d 813 [2012]; People v Lockwood, 308 AD2d 640 [3d Dept 2003]).

Concur — Tom, J.E, Moskowitz, Manzanet-Daniels, Feinman and Gische, JJ.