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Attempted Sexual Abuse…cont

ot call as a witness WF, defendant’s relapse prevention therapist of four years, whose circumspect “Compliance Letter” is of no evidentiary value beyond proof of attendance. Nor did defendant challenge the current validity of the 2004 findings of the Board of Examiners of Sex Offenders, which rate him a moderate threat to public safety.

What the criminal defendant offered was his own assessment of what lead to his commission of sex offenses: drinking liquor in the presence of women. Defendant testified that he has a “type of inclination” and that he “acted on it because he was drinking, because he lived a life-style that was conducive to put himself in that position, going out every night, drinking, going to good events press things.”

The court finds defendant’s explanation unconvincing. Although alcohol may play a contributing role in the commission of a sexual assault, by diminishing a defendant’s rationality and self-control, the use of alcohol is insufficient to account for the offense. Many people get drunk but relatively few commit sex crimes.

The court rejects the defendant’s claim that he has changed his “whole lifestyle” because he still regularly entertains clients at establishments where liquor is served and women are present—the same circumstances which preceded his 2003 sexual assault on a woman in her twenties and culminated in his incarceration and the extant sentence of probation. The defendant provided no evidence that he has sought treatment for alcohol abuse either.
The court finds that the defendant is less than rehabilitated. Defendant’s attributing his sexually assaultive conduct to a state of intoxication and his claim that he was a victim of circumstance signal that he does not accept full responsibility for his actions, notwithstanding his guilty pleas. His characterization of the offenses as “some bad behavior” and his testimony simultaneously denying culpability and offering a qualified admission of guilt “for what he pled guilty to unchanged minimization of the seriousness of his drug crimes.

Defendant testified to the importance of religion in helping him face his daily struggle against what defendant described as his “type of inclination”. The court opines that he cannot use the practice of religion as the basis for premature termination of mental health treatment or supervision by the Department of Probation. Defendant presented no evidence linking religion to a reduction in sex offender recidivism. Indeed, defendant’s becoming religious in 1988 did not prevent him from committing a sex crime three years later. Clearly, religious faith may play a crucial role in preventing reoffending, but it must be combined with treatment and monitoring by the Department of Probation.

The defendant, therefore, cannot satisfy the second precondition to early termination in CPL § 410.90(3)(a), which requires a showing that the probationer “has diligently complied with the terms and conditions” of probation.

Further, the court is not persuaded that relaxation of travel restrictions is the true motivation underlying this motion. For years defendant has enjoyed the freedom to travel at the click of an email to the Department of Probation. He must seek preapproval, but the restrictions are not unreasonably burdensome. Travel is a pretextual reason. Defendant also seeks early termination, because he believes that being on probation presents a roadblock to marriage. The court does not believe him. Defendant does not understand that it is not his status as a probationer that is a hindrance to marriage, it is his history of sexual assaults.

To prove rehabilitation and prevail on this motion to terminate probation, defendant, a level two sex offender, must, by a preponderance of the evidence, that he has a mature awareness and understanding of the traits, issues and conditions which activated or supported his commission of a sexual assault on a woman who was too impaired to consent and persuade this Court that he has control over his behavior and is unlikely to commit another sex crimes. He has failed in all respects.

Accordingly, the motion is denied.

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