Opinion
Index No. SMZ-70204-23
05-02-2024
The People of the State of New York, v. George J. Feroleto, Jr., Defendant.
Law Office of Robert King, PLLC Attorneys for Defendant Attn: Greg Colavecchia, Esq. & Robert King, Esq. Attn: Chief ADA Chana Krauss & ADA Melissa Lynch
Unpublished Opinion
Law Office of Robert King, PLLC Attorneys for Defendant
Attn: Greg Colavecchia, Esq. & Robert King, Esq. Attn: Chief ADA Chana Krauss & ADA Melissa Lynch
Anthony R. Molé, J.
The following papers were read and considered on the petition filed by defendant George J. Feroleto, Jr., made pursuant to Correction Law § 168-o (2), seeking a downward modification of his sex offender risk level classification from level two to level one:
Papers:
• Notice of Petition, Petition, Exhibits A-I
• Updated Recommendation & Report of the Board of Examiners of Sex Offenders (dated February 13, 2024)
The Court assumes that the parties are familiar with the underlying facts and the procedural history of this case and therefore addresses the facts only as necessary to adjudicate the petition. In addition, the undersigned takes judicial notice of the prior proceedings had on this matter (see People v Byrd, 57 A.D.3d 442, 443 [1st Dept 2008], lv denied 12 N.Y.3d 795 [2009]).
I. Background
In 2006, defendant, then approximately 50 years old, was arrested by federal law enforcement officials and charged with possession of child pornography. The federal investigation disclosed that defendant used LimeWire, a peer-to-peer file-sharing program, to download and access videos and images depicting child pornography, and that he also subscribed to various commercial websites such as "illegal.CP," which offer thousands of images and videos of child pornography through paid subscriptions. Defendant was a prolific consumer of child pornography since a forensic analysis of his computer revealed over 1,200 images and 360 videos of child pornography.
On July 25, 2007, defendant was convicted in the United States District Court for the Southern District of New York, upon his plea of guilty, of possession of child pornography in violation of 18 USC § 2252A (a) (5) (B). Consequently, he was federally sentenced on November 27, 2007 to a determinate term of imprisonment of 4 years, to be followed by 3 years of supervised release.
That federal penal statute involves the knowing possession of material containing an image of child pornography that was mailed, shipped, or transported in interstate or foreign commerce by any means, or which was produced using materials that were so mailed, shipped, or transported.
Defendant was released to federal probation supervision in August 2011. In July of 2013, the District Court found that defendant violated the terms of his supervision for being untruthful to the supervising officer, possessing an unmonitored internet-capable device, and failing to disclose he possessed a black-powder replica firearm; and consequently, he was resentenced upon the violation by the federal judge.
As a resident of New York, defendant was required to register as a sex offender due to his conviction of a sex-related offense (see Correction Law § 168-a [2][d] [iii]). The New York State Board of Examiners of Sex Offenders (hereinafter the Board) evaluated him for purposes of registration in accordance with the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]).
Following a SORA hearing in this Court in 2011, defendant was adjudicated as a level two sex offender. An Order of Determination to that effect was signed on December 21, 2011 (Hon. James T. Rooney, J.C.C. [retired]). Defendant was released from supervision in 2016, thus completing his federal sentence.
On December 8, 2023, defendant filed a petition, pursuant to Correction Law § 168-o (2), to further modify his SORA risk level by reducing it to level one. Upon filing of his application, the Court forwarded a copy of the petition and accompanying documents to the Board. We requested an updated recommendation from the Board since it is mandated by Correction Law § 168-o (4) (see Correction Law § 168-l [7] ["(t)he (B)oard shall provide an updated report pertaining to the sex offender petitioning for... a modification of his or her level of notification"]).
No opposition papers were filed by the People with respect to defendant's petition for a downward modification. On May 1, 2024, the Court held a hearing on the petition in accordance with Correction Law § 168-o (4), where the People made oral arguments opposing the petition. The Board submitted its updated report wherein it recommends denial. For the following reasons, the petition is denied.
II. Legal Standard
"Correction Law § 168-o (2) permits a sex offender required to register pursuant to SORA to petition annually for modification of his [or her] risk level classification." (People v Charles, 162 A.D.3d 125, 140 [2d Dept 2018], lv denied 32 N.Y.3d 904 [2018]). Correction Law § 168-o (2) provides that "[a]ny sex offender required to register or verify... may petition... the court which made the determination regarding the level of notification for an order modifying the level of notification." The statute further provides that "[t]he petition shall set forth the level of notification sought, together with the reasons for seeking such determination" (id.).
"SORA contemplates that risk level determinations may be made by a court other than the sentencing court" (People v Daniels, 86 A.D.3d 921, 922 [4th Dept 2011], lv denied 17 N.Y.3d 715 [2011] [internal quotation marks and citation omitted]). That applies here because the undersigned was not the sentencing court.
The Correction Law requires that the Board must provide an updated recommendation after the petition and the accompanying submissions are forwarded for the Board's review (see Correction Law § 168-l [7]; see also id. at § 168-o [4]). "Generally, only 'after reviewing the recommendation received from the [B]oard and any relevant materials and evidence' may the court grant or deny the petition for modification" (People v Kaminski, 184 A.D.3d 951, 952 [3d Dept 2020] [internal brackets omitted], quoting Correction Law § 168-o [4]).
Defendant here, as "[t]he petitioner[,]... bears the burden of proving the facts supporting a requested modification by clear and convincing evidence" (People v Charles, 162 A.D.3d at 140 [internal quotation marks and citations omitted]; see Correction Law § 168-o [2] ["(t)he sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence"]). "[T]he relevant inquiry regarding Correction Law § 168-o (2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof" (People v Anthony, 171 A.D.3d 1412, 1413 [3d Dept 2019]; accord People v Bentley, 186 A.D.3d 1135, 1136 [4th Dept 2020], lv denied 36 N.Y.3d 903 [2020]). "After reviewing the recommendation received from the [B]oard and any relevant materials and evidence submitted by the sex offender and the district attorney," the SORA hearing court has wide discretion to "grant or deny the petition" (Correction Law § 168-o [4]; see People v Lashway, 25 N.Y.3d 478, 483 [2015]; see also Correction Law § 168-n [2], [3]).
III. Findings of Fact and Conclusions of Law
In support of his petition, defendant submitted, among other things, a personal statement, character reference letters on his behalf, his marriage certificate, a 2022 treatment letter from his individual therapist Gerald Swenson, a licensed clinical social worker (LCSW-R), a risk assessment evaluation from Carl Christensen, a LCSW-R, which was updated in December of 2023, and a letter from Empire State Forensics dated March 15, 2024.
Defendant contends that in view of his background, lifestyle, and the submissions in support of his petition, he poses minimal to no risk of a repeat sex offense, nor does he pose a threat to public safety. In petitioning for downward modification of his risk level, defendant relies on his time in the community of being a law-abiding citizen since the conviction, continued compliance with SORA registrations, undergoing successful sex offender treatment, stability in his personal life, the clinical risk assessments concluding that he is a low-level risk of reoffending, his advanced age, his ability to maintain a healthy adult relationship, and his expressions of remorse and accepting full responsibility for his criminal conduct.
Defendant references his tumultuous background by representing that he comes from an impoverished family dynamic with immigrant parents, that he witnessed his father domestically abuse his mother, whereafter, his father was committed to a psychiatric ward, he was removed from his parents and placed in a group home by child protective services, and he was sexually abused by an older male when he was 14 years old. In addition, defendant points out that he has been married to his wife for almost 40 years, has been self-employed as a taxicab/limousine owner and driver for most of his professional career, and he has been living with his wife in the same home which they purchased more than 40 years ago. Defendant, in essence, asserts that he has learned from his prior criminal conduct, taken proactive measures to address his needs, and is unlikely to engage in recidivist conduct, despite being a convicted sex offender.
The People oppose defendant's petition. At the hearing, the People argued that the only changes since defendant's SORA designation are that he is older, and that he is no longer engaged in any type of treatment or therapy whatsoever, including sex offender treatment. The People's position is that this change does not support his application. The Court agrees.
While recognizing the various mitigating factors advanced by defendant, the Board recommends denial of the petition. In so doing, the Board reviewed his submissions and has earnest concerns that defendant engaged in "voyeuristic sexual activity, attending peep shows, recording his sexual activity[,]... possessing large quantities of adult pornography, [and] having sex with prostitutes." The Board believes that defendant continues to "struggle with sexual preoccupation and addiction."
The Board also asserts that defendant's past behavior demonstrates that he has a history of making false statements, underscoring that he did not continue with any form of sex offender treatment after he was released from supervision. The Board faults him for failing to complete sex offender treatment because it is "an important aspect of his recovery." The Board submits that his failure to provide verification that he engaged in sex offender treatment should be fatal to his petition. Based on the foregoing, the Board opposes a reduction of defendant's risk level classification.
Notwithstanding the Board's recommendation, "[t]he court ultimately determines a petitioner's SORA risk level, and is not bound by the Board's recommendation, from which it may depart in considering the record" (People v Lashway, 25 N.Y.3d 478, 483 [2015], citing Correction Law § 168-n [2], [3]; accord People v Davis, 179 A.D.3d 183, 187 [2d Dept 2019]).
Applying the governing legal principles here, the Courts finds that defendant failed to establish, by clear and convincing evidence, facts warranting a modification of his existing risk level classification (see People v Springs, 162 A.D.3d 917, 918 [2d Dept 2018]). "[T]he relevant inquiry regarding Correction Law § 168-o (2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof" (People v Anthony, 171 A.D.3d 1412, 1413 [3d Dept 2019]). Upon review of the relevant materials, this Court exercises its discretion to deny the petition (see Correction Law § 168-o [4]; see People v Lashway, 25 N.Y.3d at 483).
Initially, the Court highlights that defendant was found to have violated his supervised release in 2013 after a search of his residence revealed voluminous pornographic materials consisting of adult videos and magazines and a cellphone with internet capabilities, including a recording on an electronic device where he is engaging in sexual acts during adult peep shows. Defendant was also found to have violated his supervised release for failing to complete his monthly sex offender supervision reports. In fact, one of his former probation officers stated that defendant "suffers from a true addiction to sex."
Upon examining the submissions in their totality, the Court holds that defendant did not submit sufficient evidence that conditions have changed since his conviction. Although the Court acknowledges that since his designation as a risk level two offender, defendant underwent counseling and engaged in some form of treatment, the undersigned finds that the evidence is devoid as to whether his participation in such treatment was meaningful (see People v Hegazy, 170 A.D.3d 899, 900 [2d Dept 2019]; People v Wright, 78 A.D.3d 1437, 1438 [3d Dept 2010]).
Swenson, who defendant stated at the hearing was his individual therapist prior to his conviction, represents that defendant was sincere, truly remorseful, and accepted full responsibility for his conduct during the therapeutic sessions. However, there is no indication that Swenson is specialized in any kind of sex offender treatment. Those individual therapy sessions ended in 2013 when Swenson retired (more than 10 years ago). Defendant nevertheless did not pursue any further individual therapy thereafter.
Christensen's report and updated evaluation hold minimal weight, relying almost entirely on defendant's age and the time elapsed since his initial SORA designation, and utilizes general studies to support his conclusion that defendant is at a low risk of reoffending. The Court finds that Christensen's report and evaluation serve as an additional basis to deny defendant's application. Of import, there is no indication that Christensen reviewed the full records of defendant's criminal history and treatment in reaching his professional conclusions, and apparently, was unaware of his violations in 2013.
Christensen's report is lacking in critical details regarding defendant's full history, including his conduct during the time of his supervised release when he continued to engage in sexual conduct with prostitutes and possessed unmonitored devices well into his sex offender treatment. His report incorrectly states that defendant completed supervised release without any infractions. This is concerning to the Court for two reasons. First, if those facts had been provided to Christensen and factored into his evaluation, it is reasonable to believe that Christensen's professional opinions and conclusions about defendant would have been quite different. Secondly, because Christensen's evaluation was based upon defendant's self-reporting, defendant was being untruthful with the evaluator in failing to disclose his violations. Defendant's behavior is consistent with his failure to disclose the nature of his conduct while he was participating in treatment, thus ultimately resulting in his violations.
Further, Christensen's evaluation states that defendant has "difficulty in reporting any mental or emotional difficulties" and that he displayed "a significant sexual attraction to adolescent females." There are also inconsistencies about the extent of defendant's involvement in community service despite the character letter submitted by his spouse. In that regard, Christensen's report reflects that defendant was preoccupied with his work to engage in community service, yet his wife indicated in her letter of support that defendant engages extensively in community service. Therefore, the Court does not find that Christensen's report supports defendant's petition but tends to show the contrary.
Critically, defendant presented no evidence that he continued a sex offender treatment program - thereby casting doubt as to whether his individualized treatment goals were achieved. The Board highlights that it would have been an important aspect of recovery, yet defendant elected not to continue with sex offender specific treatment when his probation supervision ended in July of 2016. The letter from Empire State Forensics confirms as much, reflecting that defendant declined to continue his participation in sex offender specific treatment after his mandate had expired, despite being offered the opportunity, since he felt he would not benefit from it (see People v Colon, 185 A.D.3d 612, 613 [2d Dept 2020], lv denied 35 N.Y.3d 916 [2020]; People v Wiggins, 180 A.D.3d 820, 821 [2d Dept 2020], lv denied 35 N.Y.3d 910 [2020]; see also see People v Barber, 27 Misc.3d 1234 [A], *2-5 [Sup Ct, Westchester County 2010]). Defendant's belief, however, was misguided.
The record reveals that three years into his treatment, defendant was found to be deceptive, concealing his actions, and engaging in prohibited conduct while he was participating in sex offender treatment and individual therapy. Despite continuing only with his mandatory sex offender treatment, defendant chose to discontinue individual therapy instead of resuming it.
Defendant's present age (67 years) is not a reliable factor in determining his risk of reoffending, notwithstanding actuarial evidence, since he committed the underlying offense when he was 50 years old and, at that point, a mature adult. Age and time are foreseeable changes and were not sufficiently shown here to be mitigating factors. Although defendant has not reoffended since his release from supervision on the underlying sex offense and is in his late 60s, "these factors are outweighed by the extreme seriousness and nature of the underlying sex offense" (People v Hegazy, 170 A.D.3d at 900; see People v DeSoto, 181 A.D.3d 835, 836 [2d Dept 2020]).
Moreover, defendant's long marriage with his wife is not a mitigating factor since he was married to, and living with, his wife in 2006 when he committed the underlying offense (see People v McFarland, 120 A.D.3d 1121, 1122 [1st Dept 2014], lv denied 24 N.Y.3d [2014]). At the time of his SORA designation, defendant was married to his present spouse and was engaged in the same employment. A few years into his treatment, defendant was found to have been engaging in sex with prostitutes and in possession of unmonitored devices which he was prohibited from having.
Furthermore, defendant provided no evidence that his troubled past since his childhood might prevent him from repeating the offending behavior (see People v Mota, 165 A.D.3d 988, 989 [2d Dept 2018], lv denied 32 N.Y.3d 917 [2019]). None of the other factors identified by defendant, either singly, in combination with each other, or in combination with his present age, conclusively establish that he poses no danger of reoffending (see People v Vegh, 134 A.D.3d 1084, 1085 [2d Dept 2015], lv denied 27 N.Y.3d 903 [2016]).
Sharing the Board's concerns, the Court, too, remains troubled with defendant's preoccupation with sex, given his prior acknowledgments that he regularly views pornography and that he first viewed and masturbated to child pornography during his 40s and did so until his 50s before he was caught by police. The record reflects that he was deceptive about his infidelity and desire to engage prostitutes.
Additionally, the evidence demonstrates that defendant has not addressed his mental health issues (see People v Bentley, 186 A.D.3d at 1136). During the hearing, defendant was asked whether he engaged in treatment or therapy in relation to the diagnostic impressions of adjustment disorder with mixed anxiety, depression, substance abuse, hebephilia, and obsessive, compulsive personality features, which were referenced in the Board's updated report. Defendant conceded that he has not engaged in any such therapy or treatment to address those mental health issues (see id.).
All in all, the Court finds that defendant did not present convincing evidence. Although the defendant has not reoffended since his supervised release and is advanced in age, these factors are outweighed by the extreme nature of the underlying offense and his violative conduct when he was being supervised. His unwillingness to successfully complete sex offender specific treatment does not demonstrate a lowered risk of re-offense. Therefore, his petition is denied (see People v Clark, 207 A.D.3d 758, 759 [2d Dept 2022], lv denied 39 N.Y.3d 903 [2022]; People v Colon, 185 A.D.3d at 613; People v DeSoto, 181 A.D.3d at 836; see also People v Wiggins, 180 A.D.3d at 821; People v Hegazy, 170 A.D.3d at 900; People v McFarland, 120 A.D.3d at 1122).
IV. Conclusion
In sum, the Court holds that defendant did not submit clear and convincing evidence that conditions have changed since his conviction so as to warrant a downward modification of his risk level. Considering the record as a whole and crediting petitioner's submissions, the Court exercises its discretion in denying the petition. Accordingly, it is hereby:
Ordered and Adjudged that defendant George J. Feroleto, Jr .'s petition made, pursuant to Correction Law § 168-o (2), for a downward modification of his sex offender risk level classification from level two to level one, is DENIED; and it is further
Ordered that defendant shall continue to fully comply with the registration requirements as a level two sex offender in accordance with SORA and the laws of New York State.
The foregoing constitutes the decision, order, and opinion of this Court.
Proper entry of this Order should be made by a party (see generally People v Lane, 202 A.D.3d 32, 36-39 [3d Dept 2021]).
The court clerk shall forward a copy of this Decision and Order via email to the Division of Criminal Justice Services (DCJS), at risklevel@dcjs.ny.gov.