This is a proceeding wherein the defendant, MW, moves, pursuant to CPL § 410.90(1), for an order granting early termination of his ten-year sentence of probation, on the ground that he is rehabilitated.
On 10 May 2012, the court held a hearing wherein Rabbi EZ testified on defendant’s behalf, as did defendant. The court finds Rabbi EZ to be a credible witness but rejects his conclusion that defendant’s practice of Orthodox Judaism nearly eliminates the risk that defendant will commit future sexual assault and obviates the need for ongoing monitoring of defendant by the Department of Probation.
The court is faced with the task of determining whether defendant is rehabilitated and whether continued supervision is warranted. In order to make that assessment, the defendant’s current “conduct and condition” (CPL § 410.90[a] ) as compared to his status in 2004 shall be considered. Accordingly, I have examined the information available to the sentencing court eight years ago (gleaned from transcripts and other court records), along with the evidence presented at the hearing of this motion. Following are my findings of fact and conclusions of law.
Defendant is a 1987 graduate of NYU Law School. After working at the Skadden Arps law firm, he served as a clerk for a Southern District Court Judge. The defendant went on to serve as a law professor at NYU’s business school. Since 1994, he has worked in the areas of marketing and public relations.
On 19 February 2002, a Sullivan County grand jury handed down an indictment charging defendant with Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Unlawful Imprisonment in the First Degree, arising from an incident in Loch Sheldrake, New York.
On 22 September 2003, less than two years after defendant’s upstate convictions, he committed a sexual assault in Manhattan. Defendant was arraigned on the charge of Rape in the First Degree. But, the parties reached a court-approved plea agreement and, on 28 July 2004, in Supreme Court, New York County, defendant waived indictment and agreed to be prosecuted by a superior court information alleging the lower charge of Attempted Sexual Abuse in the First Degree. Criminal Defendant pleaded guilty to that charge, admitting that when he attempted to touch the vaginal area of his female victim she was physically helpless and, therefore, incapable of consent. The court sentenced six months’ incarceration to be followed by a ten-year term of probation.
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