                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: July 28, 2016                       105180
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

AARON M. MARTINEZ,
                    Appellant.
________________________________


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., McCarthy, Rose, Clark and Mulvey, JJ.

                               __________


      Ruchelman & Cruikshank, PC, Plattsburgh (Allan B.
Cruikshank Jr. of counsel), for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A.
Douthat of counsel), for respondent.

                               __________


      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 crimes of 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 that defendant had inadvertently downloaded, an
investigation ensued and defendant was charged in a 27-count
indictment with various crimes relating to his sexual abuse of a
three-year-old child on May 21, 2010. That indictment included
21 counts stemming from defendant's actions in videotaping and
photographing a sexual performance by the child on that date.
Defendant later entered a guilty plea to a federal charge of
                              -2-                105180

producing child pornography (see 18 USC § 2251 [a]) stemming from
the same conduct in videotaping and photographing the child, and
he was sentenced to a 30-year federal prison term with lifetime
supervision. With regard to the subject indictment, defendant
pleaded guilty to six counts related to his direct sexual abuse
of the child. Specifically, defendant admitted that, on the day
charged, he committed sexual abuse in the first degree (three
counts) by subjecting the child to sexual contact by placing her
hand on his erect penis and grabbing her vagina, and, six hours
later, by again 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 5½ hours apart, by subjecting her to oral sexual
conduct. No sentencing promises were made. On the People's
motion, County Court dismissed the remaining 21 counts of the
subject indictment, finding that the guilty pleas covered
defendant's underlying conduct in videotaping and photographing
the child. The court thereafter sentenced defendant to an
aggregate prison term of 50 years to life with 15 years of
postrelease supervision (hereinafter PRS), to be served
concurrently with his federal sentence.1 Defendant appeals.

      Defendant argues on appeal that the aggregate sentence is
harsh and excessive and disproportionate to the offenses in view
of his age (25), substance abuse history, lack of a criminal
record and acceptance of responsibility. A review of the
sentencing minutes discloses 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 needs child. While the crimes occurred within
approximately six hours of one another, they were grievous and
involved the creation of child pornography. Moreover, the
discovery in defendant's possession of substantial quantities of


    1
        While County Court pronounced at sentencing that it was
imposing consecutive 30-year to life sentences for each of the
predatory sexual assault convictions, with all other sentences to
run concurrently, the sentence was corrected in the uniform
sentence and commitment form to reflect consecutive 25-year to
life sentences, as the parties recognize.
                              -3-                105180

graphic images of prepubescent girls subjected to sexual
performance, including bestiality, supports the lengthy prison
sentences, which will serve to protect helpless young children
from sexual exploitation. We find neither an abuse of discretion
nor extraordinary circumstances warranting a reduction of the
aggregate sentence in the interest of justice (see People v
Brown, 128 AD3d 1183, 1189 [2015], lv denied 27 NY3d 993 [2016];
People v Jabaut, 111 AD3d 1140, 1147-1148 [2013], lv denied 22
NY3d 1139 [2014]).

      However, as the People concede, County Court incorrectly
imposed prison sentences of 10 years, with 15 years of PRS, for
each count of sexual abuse in the first degree. The permissible
sentence for this class D violent felony sex offense is a
determinate term between 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 and 10 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 and
effectively subsumed in the aggregate 50-year to life sentence
imposed for the predatory sexual assaults, we correct the
sentences for sexual abuse in the first degree, by reducing each
to seven years with 10 years of PRS.

      Lahtinen, J.P., McCarthy, Rose, Clark and Mulvey, JJ.,
concur.
                              -4-                  105180

      ORDERED that the judgment is modified, on the law, by
reducing defendant's sentences for sexual abuse in the first
degree under counts 1, 5 and 19 to seven years in prison with 10
years of postrelease supervision, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
