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Court Prohibits Sex Offender From Seeing Wife as a Condition of Release


In 1999, petitioner was arrested for rape in the first degree and thereafter convicted, upon his plea of guilty, of sexual abuse in the first degree. The victim, who was his girlfriend at the time and is a petitioner in this proceeding, later married petitioner while he was serving a subsequent prison term in connection with a 2004 conviction of burglary in the second degree. A New York Criminal Lawyer said that the petitioners participated in Family Reunion Program visits three times between October 2006 and October 2007.

In November 2008, petitioner appeared before the Board of Parole, which issued a decision setting the conditions for his anticipated release from prison. In light of the sex crimes committed by petitioner against his wife, as well as evidence of a history of domestic violence between the two, the Board imposed several conditions, including the requirement that petitioner refrain from “associating in any way or communicating by any means with his wife without the permission of” his parole officer.

Petitioners requested the removal of the aforesaid special condition with the Division of Parole but were, thereafter, denied. Hence, petitioners commenced the instant proceeding challenging the condition.

Was the special condition imposed upon the petitioner’s parole release proper?

The decision to impose a special condition upon the release of an inmate is discretionary in nature and beyond the review of the courts so long as made in accordance with law.

Petitioners concede that respondent had a compelling interest in supervising petitioner upon his release, and that respondent parole officer has the discretion to impose conditions restricting contact between spouses. They argue, however, that the special condition at issue is unlawful, arbitrary and capricious. A New York Criminal Lawyer said that specifically, petitioners assert that the special condition restricts their fundamental right to maintain a marital relationship, but is not narrowly tailored to the state’s interests in supervising petitioner and protecting his wife, and serves no legitimate penological objective. The court disagrees.

The right to marry is a fundamental right that remains constitutionally protected in the penological context. To be valid, a restriction of that right must be reasonably related to legitimate penological interests. Reasonableness is determined by considering, among other things, whether there is a valid, rational connection between the regulation and the legitimate governmental interest put forward to justify it, and whether there are obvious, easy alternatives that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives. Moreover, a special condition will not be deemed arbitrary and capricious if it is rationally related to the inmate’s criminal history, past conduct and future chances of recidivism.

In the instant case, petitioner’s decades-long criminal record includes an arrest for rape in the first degree and a conviction upon a guilty plea of sexual abuse in the first degree against his wife. Petitioner was also classified as a sex offender, violated an order of protection in favor of his wife when released on probation in connection with that crime, and has a history of domestic violence perpetrated against his wife. In addition to his past conduct with his wife, we note that petitioner received 20 disciplinary infractions while in custody, and has a long history of both substance abuse and orders of protection issued in favor of his parents. Although petitioners enjoyed three conjugal visits in a highly regulated setting, they have not had unsupervised time together since at least 2004.

Under the circumstances, the court concludes that the special condition imposed, which is essentially a five-year ban on contact that is not supervised by a parole officer, is reasonably related to legitimate penological objectives and rationally related to petitioner’s history and potential recidivism. Moreover, petitioners’ suggested alternatives would impose more than a de minimis cost on the state in pursuit of its concededly legitimate goals. Indeed, even if a heightened level of scrutiny is warranted because a fundamental right is being burdened, there is a direct relationship between petitioner’s criminal history and the challenged condition, which does not impose a complete impediment to petitioners’ fundamental right to family life.

Accordingly, the court finds that the special condition is not unlawful, arbitrary or capricious.

A history of domestic violence is part of the factors to be considered in determining the conditions for a parole release. If you have been charged with a criminal matter such as a drug possession, assault or theft, contact Stephen Bilkis & Associates for a free consultation.

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