DECISION AND ORDER Defendant moves, pursuant to Criminal Procedure Law section 410.90 (1), for an order granting early termination of his sentence of probation, on the ground that probation supervision is no longer necessary. The People oppose the motion. The New York City (NYC) Department of Probation “does not oppose” the motion but “defer[s] to the court for a final decision.”1 For the reasons set forth below, defendant’s motion is denied. Background Plea and Sentence Proceedings On August 29, 2015, defendant followed a woman he saw on a subway train from the train station into her apartment building. Defendant proceeded to the elevator that the woman entered and once in the elevator, he exposed his penis to the woman and began masturbating. Defendant then followed the woman off the elevator to her apartment. When the woman reached her apartment door, defendant grabbed her arms from behind, pushed his erect penis into her buttocks and touched her breasts, while stating: “come on baby, come on baby.” The assault came to an end when the woman was able to push defendant away, get inside her apartment and lock the door. In connection with the incident, defendant was indicted for the crimes of sexual abuse in the first degree (Penal Law §130.65 [1]) and burglary in the second degree, as a sexually motivated felony (Penal Law §§130.91 [1], [2]; 140.25 [2]). During plea negotiations, defense counsel submitted a March 14, 2016, pre-pleading memorandum prepared by Amanda Ingle, LMSW, a forensic social worker with The Legal Aid Society. The memo sets forth information obtained from: interviews of defendant and his father; an independent psychological evaluation completed by Dr. Jessica Pearson, Psy.D.; and correspondence with Shiloh Consulting, LLC (Shiloh), a New York State Office of Mental Health clinic, where defendant had enrolled. The memo outlines defendant’s “exposure to trauma and development of maladaptive behaviors,” as well as his diagnoses, treatment and prognosis. The memorandum describes childhood experiences that disrupted defendant’s “psychological, sexual and interpersonal development.” Specifically, growing up, defendant witnessed domestic violence between his parents, including an incident where defendant intervened to stop his father from choking his mother. And defendant and his sister, at ages seven and eight, respectively, began engaging in a years-long sexual relationship. In addition, from age thirteen, defendant began watching pornography to an increasing extent, until it developed into a compulsive behavior. Defendant reported that he viewed pornography on a daily basis for nearly five hours per day and that it interrupted his sleep. Defendant characterized watching pornography as “an addiction”. Dr. Pearson diagnosed defendant with Persistent Depressive Disorder and Otherwise Specified Anxiety Disorder. From the psychological evaluation, Dr. Pearson determined as follows: [defendant] has experienced significant trauma and disruption in the process of normative sexual development leading to distorted beliefs about sexual relationships and women in general. He also presents with some impulsivity, hyperactivity, restlessness, and hypersexuality that should be evaluated and monitored by a psychiatrist, as they may be signs of hypomania. Dr. Pearson stated that “[defendant] would strongly benefit from remaining in specialized treatment to address these cognitive distortions.” In addition, Dr. Pearson opined that “if [defendant] remains engaged and compliant with treatment…he will be at a lower risk for future criminal behavior.” Pursuant to a negotiated agreement, on August 16, 2016, defendant pleaded guilty to sexual abuse in the first degree before Supreme Court Justice Thomas A. Farber. The plea agreement provided for an adjournment for sentence during which time defendant would participate in sex offender treatment at Shiloh. If defendant complied, the sentence would be ten years’ probation. In addition, the People would consider consenting to defendant withdrawing his plea to first-degree sexual abuse and pleading to an offense not subject to the registration requirements of the Sex Offender Registration Act (SORA). After periodic updates, on December 19, 2017, Judge Farber permitted defendant to withdraw his plea to sexual abuse in the first degree and plead guilty, under the burglary count, to attempt to commit burglary in the second degree, as a sexually motivated felony, a lesser offense for which there is no SORA registration. During his pre-sentence investigation interview, defendant admitted guilt, stating: I followed a woman from the train to her apartment building. Inside the elevator in the building, I exposed myself to her, and forced myself on her, and felt her breasts and butt. It’s something I wanted to do. It was a fantasy. I watched a lot of porn. On January 9, 2018, Judge Farber sentenced defendant to a 10-year term of probation. He also ordered that defendant complete sex offender treatment and that defendant not view pornography. Judge Farber declined to impose the “additional conditions for sex offenders” requested by the probation department but allowed for the search of defendant, his home, his car and, for the first year of the sentence, defendant’s computer. May 2022 Motion to Terminate Probation On March 29, 2022, defendant completed the Shiloh sex offender treatment program, and on May 16, 2022, he filed a motion for early termination of probation. By decision and order dated September 9, 2022, Judge Farber denied the motion with leave to renew in eighteen months. In the decision, Judge Farber explained that he did not agree that early termination was not adverse to the protection of the public or that defendant was not in need of the probation department’s services. Judge Farber noted that “[a] major consideration in permitting defendant to ple[a]d guilty to a non-registerable offense was the [c]ourt’s understanding that [defendant] would be under the supervision of probation for ten years.” The opinion also states that “[t]he ten-year term is appropriate given the seriousness of defendant’s underlying sexual misconduct and the fact that defendant was not required to register as a sex offender.” (Vassallo affirmation, exhibit A.) July 2024 Motion to Terminate Probation On July 2, 2024, defendant renewed his motion. Due to Judge Farber’s retirement in 2023, on August 20, 2024, the case was reassigned to me for decision. In support of the requested relief, defendant submits materials regarding his education and employment, as well as a June 7, 2024 letter of A. Vlassova, LMHC, a licensed mental health counselor with Shiloh. In the letter, the counselor states that defendant “has been actively engaged and discussing meaningful topics” and that “his attendance has continued to be excellent.” The counselor explains that defendant “continues to work toward gaining financial stability in order to secure independent housing and develop his socialization and communication skills.” In addition, A. Vlassova notes that defendant is “consistently encouraged to continue developing healthy boundaries within his family setting which tends to trigger his depressive and additional mental health symptoms.” In closing, defendant’s counselor writes that “[o]verall [defendant's] standing and participation has been satisfactory.” (Vassallo affirmation, exhibit B.) Defendant argues that he no longer needs probation’s services because he has: (1) completed sex offender treatment; (2) voluntarily continued in Shiloh programs; (3) earned a college associate degree; (4) obtained a New York State driver license; and (5) maintained employment. Defendant asserts that early termination is not adverse to public safety because this is “his only arrest and only conviction” and that he has “a mature awareness and understanding of the traits that contributed to the crime” (Vassallo affirmation at 5-6). In addition, defendant asserts that his continued mental health counseling, work record and “lack of contact with law enforcement since his arrest,” demonstrate that he is unlikely to commit “another sex crime or other criminal offense” (Id. 10). The People argue that defendant remains in need of probation supervision because his counselor states that defendant continues to work on skills and setting boundaries in connection with his mental health symptoms. The People also argue that defendant fails to establish that, absent treatment and supervision, he can refrain from engaging in sexually assaultive conduct in the future. Discussion Pursuant to Penal Law section 130.91, the crime of attempt to commit burglary in the second degree for the purpose of the offender’s “own direct sexual gratification” is a sexually motivated felony (Penal Law §130.91 [1], [2]). Since 2000, Penal Law article 65 mandates that the term of probation for felony sexual assaults, for which probation is permissible, shall be ten years (Penal Law §65.00 [3] [b] [iii]). The 10-year period was established by the Sexual Assault Reform Act of 2000 (SARA). The enactment of SARA brought about a complete revision of sentencing provisions for sex offenses, including the doubling of the period of probation for misdemeanors and felonies “in order to better track and monitor sex offenders” (People v. Weitz, 37 Misc 3d 445, 455 [Sup Ct, NY County 2012]). Unlike sentences of incarceration, courts may alter probation sentences and a defendant may be discharged from probation before the completion of the term “if the court finds that continuous supervision is no longer necessary” (People v. Rodney E., 77 NY2d 672, 675-676 [1991]). Indeed, “[a] judge must grant early termination if she ‘is of the opinion’ that: a defendant does not need the guidance, training or other assistance provided by probation; the probationer has diligently complied with the terms and conditions of probation; and termination is not adverse to the protection of the public” (Weitz at 455; CPL 410.90 [3] [a]). When a sex offender seeks early termination, he must establish that he has a ” ‘mature awareness and understanding of the traits, issues and conditions which activated or supported his commission of’ the offense” (People v. Sanchez, 2024 NY Slip Op 04441 [1st Dept 2024] citing Weitz). Here, defendant has, thus far, diligently complied with the terms and conditions of probation. Defendant’s completion of the initial court-ordered sex offender treatment and ongoing participation in Shiloh, as well as the attainment of a college degree and employment are constructive strides; ones that can aid defendant in leading a productive life. In addition, defendant is completing his required probation check-ins and home visits. Compliance is, however, but one of the factors to be weighed. In light of defendant’s sexual misconduct, his admissions regarding the crime and Dr. Pearson’s findings, I am not of the opinion that early termination is not adverse to the protection of the public or that defendant no longer needs guidance and assistance from probation. Moreover, I am not persuaded that defendant possesses a mature awareness of the traits, issues and conditions which activated or supported his commission of a sexual assault upon a woman he happened upon in the subway. Defendant has not provided evidence of sufficient progress or rehabilitation. Although defendant attends programs with licensed mental health counselors, there is no indication that he has received the specialized treatment and monitoring recommended by Dr. Pearson based on defendant’s psychological evaluation. There is no evidence that defendant has been evaluated and is being monitored by a psychiatrist qualified to address defendant’s significant mental health issues and, in particular, defendant’s presentation of hypersexuality and distorted beliefs about sexual relationships and women. Moreover, defendant provides no information about his compulsive consumption of pornography, an addiction which he credits as having contributed to his commission of the crime. Of particular significance to the public protection consideration is Dr. Pearson’s finding that defendant would be at a lower risk of future criminal behavior by “remaining in specialized treatment” that addresses his cognitive distortions. In the absence of any evidence regarding that specific type of treatment with Shiloh or otherwise, defendant’s argument that he is unlikely to recidivate is unavailing. To be sure, the court cannot assess at all the level of risk that defendant may pose. This inability is troubling given defendant’s criminal conduct — following a stranger to her home; exposing himself to her and masturbating in an elevator; following her again and sexually assaulting her at her apartment door until she pushed him away and got inside — which, by defendant’s words, was the acting out of a fantasy. Lacking any assurance that defendant receives psychiatric care and monitoring to address his issues, including hypersexuality, impulsivity and fantasies of sexual assaults, I do not find that early discharge is consistent with the protection of the public. Similarly, I am not persuaded that defendant no longer needs guidance, assistance or other training from the probation department. Indeed, the Shiloh update specifies areas of needed growth for defendant. Defendant’s counselor explains that defendant continues to work towards goals related to minimizing triggers of his mental health symptoms. In that regard, securing housing is of paramount importance because defendant continues to live in the very setting where he developed maladaptive behaviors and distorted beliefs; the setting that triggers his mental health symptoms. The probation department routinely assists probationers with housing issues and can also assist defendant with services related to his ongoing development of healthy boundaries within his family setting. Considering all the circumstances of this case, defendant fails to establish that continuous probation supervision is no longer necessary. Although defendant is diligently complying with the terms of probation, I am not of the opinion that early discharge is not adverse to the protection of the public or that defendant no longer needs guidance or assistance provided by probation. Accordingly, defendant’s motion for early discharge from his sentence of probation is denied. This constitutes the decision and order of the court. Dated: November 7, 2024
