| People v Rodriguez |
| 2009 NY Slip Op 08681 [67 AD3d 596] |
| November 24, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JulioRodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Appeal from order, Supreme Court, New York County (Eduardo Padro, J.), entered on orabout October 9, 2007, which adjudicated defendant a level three sex offender pursuant to theSex Offender Registration Act (SORA) (Correction Law art 6-C), unanimously dismissed,without costs.
Since defendant, having absconded from parole supervision, is not presently available toobey the mandate of the court, he has forfeited his right to appeal (see e.g. People v Law, 12 AD3d 192[2004]). Although a SORA appeal is a civil appeal, this principle is similarly applicable (seee.g. Wechsler v Wechsler, 45AD3d 470, 472 [2007]).
This appeal is without merit in any event. Defendant advances the argument that hisunderlying guilty plea to two counts of rape in the first degree should be viewed as "incest ratherthan a conventional sex crime against a child." This view of the underlying crimes, defendanturges, would demonstrate that defendant is far less likely to "recidivate [sic]" becausedefendant has "run out of family victims."
This argument is wholly bereft of evidentiary support in the record, relies on purportedevidence submitted for the first time on appeal, and is repugnant to common decency, the plainlanguage of the statute, and precedent in this Department. Even if we were to accept defendant'scontention that the recidivist rate for incest child molesters is somewhat lower than that for other[*2]presumably more common child molesters, we wouldnonetheless decline to consider a discretionary downward departure. Concur—Sweeny,J.P., Buckley, Catterson, Acosta and Freedman, JJ.