| People v Martinez |
| 2016 NY Slip Op 05667 [141 AD3d 1007] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1](July 28, 2016)
| The People of the State of New York,Respondent, v Aaron M. Martinez, Appellant. |
Ruchelman & Cruikshank, PC, Plattsburgh (Allan B. Cruikshank Jr. ofcounsel), for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered November 7, 2011, convicting defendant upon his plea of guilty of the crimesof sexual abuse in the first degree (three counts), predatory sexual assault against a child(two counts) and endangering the welfare of a child.
After a woman discovered pornographic images of children on her computer thatdefendant had inadvertently downloaded, an investigation ensued and defendant wascharged in a 27-count indictment with various crimes relating to his sexual abuse of athree-year-old child on May 21, 2010. That indictment included 21 counts stemmingfrom defendant's actions in videotaping and photographing a sexual performance by thechild on that date. Defendant later entered a guilty plea to a federal charge of producingchild pornography (see 18 USC § 2251 [a]) stemming from thesame conduct in videotaping and photographing the child, and he was sentenced to a30-year federal prison term with lifetime supervision. With regard to the subjectindictment, defendant pleaded guilty to six counts related to his direct sexual abuse of thechild. Specifically, defendant admitted that, on the day charged, he committed sexualabuse in the first degree (three counts) by subjecting the child to sexual contact byplacing her hand on his erect penis and grabbing her vagina, and, six hours later, byagain placing her hand on his erect penis. Defendant also admitted that, on the same day,he committed two acts of predatory sexual assault against a child at different times,approximately 5
Defendant argues on appeal that the aggregate sentence is harsh and excessive anddisproportionate to the offenses in view of his age (25), substance abuse history, lack of acriminal record and acceptance of responsibility. A review of the sentencing minutesdiscloses that County Court fully considered all of these factors, as well as the "horrific"and exploitive nature of defendant's predatory conduct against a nonverbal, special needschild. While the crimes occurred within approximately six hours of one another, theywere grievous and involved the creation of child pornography. Moreover, the discoveryin defendant's possession of substantial quantities of graphic images of prepubescentgirls subjected to sexual performance, including bestiality, supports the lengthy prisonsentences, which will serve to protect helpless young children from sexual exploitation.We find neither an abuse of discretion nor extraordinary circumstances warranting areduction of the aggregate sentence in the interest of justice (see People v Brown, 128AD3d 1183, 1189 [2015], lv denied 27 NY3d 993 [2016]; People v Jabaut, 111 AD3d1140, 1147-1148 [2013], lv denied 22 NY3d 1139 [2014]).
However, as the People concede, County Court incorrectly imposed prison sentencesof 10 years, with 15 years of PRS, for each count of sexual abuse in the first degree. Thepermissible sentence for this class D violent felony sex offense is a determinate termbetween two and seven years (see Penal Law §§ 70.00 [6];70.02 [1] [c]; [3] [c]; 70.80 [1] [a], [b]; [4] [a] [iii]), with a term of PRS between 3 and10 years (see Penal Law §§ 70.00 [6]; 70.45 [2-a] [d]; 70.80[3], [9]). Notwithstanding that the sexual abuse sentences were concurrent with andeffectively subsumed in the aggregate 50-year to life sentence imposed for the predatorysexual assaults, we correct the sentences for sexual abuse in the first degree, by reducingeach to seven years with 10 years of PRS.
Lahtinen, J.P., McCarthy, Rose, Clark and Mulvey, JJ., concur. Ordered that thejudgment is modified, on the law, by reducing defendant's sentences for sexual abuse inthe first degree under counts 1, 5 and 19 to seven years in prison with 10 years ofpostrelease supervision, and, as so modified, affirmed.
Footnote *:While County Courtpronounced at sentencing that it was imposing consecutive 30-year to life sentences foreach of the predatory sexual assault convictions, with all other sentences to runconcurrently, the sentence was corrected in the uniform sentence and commitment formto reflect consecutive 25-year to life sentences, as the parties recognize.