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.
As the court continues its investigation, the court finds two other complaints by two other women, also young women in their early 20s who describe similar, but not exactly the same situations with Mr. MW. Neither of those other two women had an ongoing either friendship or professional relationship with him.
All three women testified in the grand jury but the grand jurors did not vote on the charges. The prosecution did not request a vote, because the parties had reached a settlement. The written agreement, prepared by defense counsel, states that defendant’s plea to one count of Attempted Sex Crimes Abuse in the First Degree “will cover the allegations made by the three complaining witnesses.”
As a consequence of defendant’s New York County conviction, on 29 July 2004, the Sullivan County Department of Probation filed a declaration of delinquency. On 14 September 2004, defendant pleaded guilty to a violation of probation. The court revoked the previously imposed sentences of probation, sentenced defendant to six months’ incarceration and ordered him to pay a $1,000 fine.
The New York City Department of Probation presentence report dated 23 September 2004 states that defendant “admitted the charge” and recounted this version of the incident:
He had known the complainant for about 4 or 5 months. They were at a party drinking and then went to his room. They started kissing and when he touched the complainant’s vagina, she said no. She was intoxicated and the defendant had sex with her.
The report noted that defendant was still under the weekly care of his psychiatrist, Dr. F, and that defendant “expressed remorse for his actions.” Costello recommended a jail sentence, stating in capital letters: “HE IS NOT A CANDIDATE FOR PROBATION AGAIN!”
In Supreme Court, New York County, on 14 October 2004, the court sentenced defendant to six months’ incarceration to run concurrently with the Sullivan County jail term, followed by ten years of probation. In open court, defendant was handed an order listing the conditions of probation, which he signed. Among the conditions is the requirement that defendant undergo “psychiatric or other appropriate treatment”. In addition, defendant is prohibited from leaving New York City without first obtaining the permission of the Court or the Department of Probation.
On 4 November 2004, defendant was disbarred.
On 8 November 2004, defendant’s sex offender risk level was raised from level one to level two. In addition, he was designated a Sexually Violent Offender and a Predicate Sex Offender.
On 26 September 2005, defendant brought a motion seeking “permission to leave New York City upon notice to the Department of Probation”. In a report to the court dated 5 October 2005, Probation Officer TB opposed the motion. Defendant ultimately withdrew the motion, apparently because the parties reached an off-the-record agreement whereby defendant was to request permission to travel by letter to the Court and Probation.
The criminal arrangement did not go smoothly and, after several months, Officer TB lodged a complaint with the court. In a proceeding on 19 September 2006, the judge chastised defendant, threatening revocation of probation and incarceration.
Rabbi EZ is the spiritual leader of the Young Israel of Brighton Beach synagogue and the director of Chabad of Kingsboro. He is a graduate of the Oholei Torah rabbinical college. The Rabbi is married and has six children. He stated that about six years ago, defendant started attending Young Israel. Defendant grew more religious, studying the Torah consistently and praying at the synagogue three times a day. He is a frequent guest at the Rabbi’s home for the Friday night Sabbath meal. He explained that in Orthodox Judaism, men and women who are not married to each other are not allowed to touch, except for a quick handshake. The Rabbi, however, holds himself to a “higher standard” and avoids even shaking hands with the opposite gender. Sex crimes, he explained, are “a great offense in the Jewish faith.”
Rabbi EZ testified that defendant is “today as far as I know, a hundred percent observant orthodox Jew, which is why I am here to explain that he changed.” Although the Rabbi has no training in the treatment of sex offenders, in his opinion, because defendant has raised his “conscience and spiritual self”, the probability of his reoffending is “one out of a thousand.” Defendant should no longer be subject to probation, the Rabbi concludes, because defendant now leads a religious life.
A document from Mustard Seed, the sex offender relapse prevention program mandated by the Department of Probation titled “Compliance Letter” authored by WF, a social worker, states that defendant’s primary treatment goals were to “identify and correct the root causes of his involvement in the sexual offense and to improve and better understand the psychological dynamics of all of his relationships.”
The court notes that the Sexual Reform Act of 2000 overhauled penalties for sex crimes. The periods of probation were doubled, in order to better track and monitor sex offenders. For felony sexual offenses, the mandatory probationary term was increased from five to ten years under PL § 65.00(3)(a)(iii). The period of probation for Class A misdemeanors rose from three to six years under PL § 65.00(3)(b)(ii).
The first step in the process of the rehabilitation of a sex offender is assessment. The threshold questions are: what is wrong with the defendant? What led him to commit a sexual assault? And how can the problem be remedied? A trained and experienced mental health professional should conduct an in depth evaluation of the defendant, identifying the specific internal and external factors that contributed to his sexually assaultive conduct.
By doing so, this will lead to the development of an individualized drug possession treatment plan designed to address the identified problems. The goal of treatment is to reduce the risk of reoffending. A court measures rehabilitation by evaluating what changes have occurred in a defendant over time. Therefore, a sex offender seeking early termination of probation under Criminal Procedure Law § 410.90 must adduce evidence of demonstrated progress since the commencement of the probationary term.
It is to be noted that although defendant has been under the psychiatric care of Dr. F for 24 years, defendant did not call Dr. F, or any other mental health expert, as a witness on the issue of rehabilitation. Nor did defendant submit an updated report from Dr. F.
The only evidence from Dr. F is his 2002 evaluation of defendant as excerpted in the Sullivan County probation report, which quotes the psychiatrist’s description of defendant’s adverse childhood environment and his “difficulties in major areas of mental functioning, including anxiety, anger control, rejection sensitivity, self-defeating behavior, obsessive symptoms, and problematic judgment”.
The defendant did n
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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