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
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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 51⁄2 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.
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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.
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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