Opinion
2993/2011
01-15-2015
The People of the State of New York v. Steeven Pierre, Defendant.
Stephanie A. Siaw, Esq., Office of General Counsel, NYC Department of Probation, for the People. Stephanie Selloni, Esq., Law Offices of Stephanie Selloni, for defendant, Steeven Pierre.
Stephanie A. Siaw, Esq., Office of General Counsel, NYC Department of Probation, for the People.
Stephanie Selloni, Esq., Law Offices of Stephanie Selloni, for defendant, Steeven Pierre.
Miriam Cyrulnik, J.
Defendant was charged with Rape in the First Degree and related sex offenses, two counts of Coercion in the Second Degree, and two counts of Endangering the Welfare of a Child, stemming from an allegation that he had sexual intercourse with an underage girl. On July 31, 2013, defendant was acquitted by a jury of all charges except Endangering the Welfare of a Child. On September 19, 2013, he was sentenced to 45 days incarceration and the balance of three years on probation. The Department of Probation's original Pre-sentence Investigation did not recommend sex offender treatment and this court did not include it as a condition of probation.
The Coercion in the Second Degree counts were dismissed and not submitted to the jury.
On September 16, 2014, the Department of Probation filed a Declaration of Delinquency with the court, alleging that defendant violated a condition of probation. The filing set forth two specifications, both based upon the defendant's refusal to enter or participate in sex offender treatment programs to which he was referred by his probation officer. In all other respects, the court was told, defendant was fully compliant with probation. On October 14, 2014, the Department withdrew the Declaration of Delinquency.
The Declaration of Delinquency was presented to, and signed by, another Justice of this court.
In the interim, on October 7, 2014, the Department of Probation submitted to this court a document labeled "Memorandum to Court," seeking to modify the conditions of probation to include defendant's participation in a sex offender treatment program. The memorandum, authored by the defendant's probation officer, states that "[t]he then twenty-four (24) year-old probationer was accused of engaging in sexual intercourse with a twelve (12) year-old minor female, subjecting her to physical contact and knowingly acting in a manner likely to be injurious to her physical, mental and/or moral welfare." It goes on to conclude that "[t]he probationer represents a danger to the community as long as his impulses, which resulted in him committing the instant offense, are not addressed."
Defendant and his counsel were given notice of the application. In arguments heard on December 18, 2014, Counsel for the Department of Probation sought to explain the almost 14-month delay in making this request by explaining that a supervising probation officer completes a separate investigation when being assigned a new probationer, in order to develop an individualized program. Counsel concluded his argument by suggesting that the decision of the Investigations Branch not to recommend sex offender treatment at the time of sentencing should not be dispositive. Defense counsel asked for, and was given, an opportunity to submit a written response. The court has reviewed and considered it in reaching a decision.
Defendant having raised no objection to the Department's submission of their request in the form of a "Memorandum to Court," this court will deem it a motion made pursuant to this section.
Defendant objects to this proposed modification for two reasons. He argues, first, that it was not imposed by the court at the time of sentencing and, second, that it is not an appropriate referral under the circumstances, as he was acquitted of all sex offenses and is therefore not a sex offender. The court does not find either of these arguments persuasive.
The first of defendant's objections essentially asks the court to rule that a change in the conditions of probation cannot be ordered now. In support, defendant cites People v K.D., 4 Misc 3d 776 (Sup Ct Kings County 2004). This court notes, however, that according to Criminal Procedure Law §410.20 (1),"[t]he court may modify or enlarge the conditions of a sentence of probation or conditional discharge at any time prior to the expiration or termination of the period of sentence." Any such "modification or enlargement may be specified in the same manner as the conditions originally imposed and becomes part of the sentence."
Moreover, defendant's reliance on People v K.D., 4 Misc 3d 776 (2004), supra, in this regard is misplaced. The court in K.D. took issue with the Department's unilateral decision to bar a probationer from working in his chosen field of employment. The court objected to what it termed a "draconian" provision imposed without either direction from, or permission of, the court. However, that is not the situation presented here. The instant application seeks the very direction the court in K.D. concluded was necessary. In fact, Counsel for the Department in this matter conceded that it was concern about the propriety of a unilateral modification which prompted the Department to withdraw the Declaration of Delinquency and seek court direction.
Accordingly, this court clearly has the authority to order a change in the conditions of probation at any point, if an appropriate showing is made.
The defendant's second objection is, in essence, the alternative - that while the court may have the power to order his participation, it should not. This court begins its analysis with the provisions of Penal Law §65.10, empowering a court to impose conditions of probation which it "deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so." Among the probation conditions that may be imposed by a court is defendant's "[participation] in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department...."
In People v Hale (93 NY2d 454, 461 [1999]), the Court of Appeals stated:
The probationer, although not physically confined, remains in the legal custody of the court' for the probationary period. Probation contemplates and even requires a level of official supervision substantial enough to insure that the defendant will lead a law-abiding life' or to assist the probationer toward that goal. In keeping with the objective, a sentencing court will typically include a number of standard, statutorily based requirements of probation relating to treatment, employment, restitution, affiliations, family obligations, community service, or other concerns. This statutory list does not purport to be complete, nor must every requirement be imposed in every case. The conditions and requirements are to be tailored to suit the probationer, and for that reason Penal Law §65.10(2)(l) empowers the sentencing court to require that the probationer [s]atisfy any other conditions reasonably related to his rehabilitation' (citations omitted).
When a defendant is convicted of Endangering the Welfare of a Child, where the gravamen of the charge is that he engaged in sexual intercourse with the complaining witness, the court may require him to participate in a sex offender treatment program as a condition of probation (see People v Brown, 62 AD3d 1209 [2d Dept 2009]; People v Velardi, 10 Misc 3d 47 [Sup Ct, App Term 2005]; People v LaCoude, 193 Misc 2d 578 [Sup Ct App Term 2002], lv denied 99 NY2d 560 [2002]).
In the case at bar, defendant was charged with Rape in the First Degree and related sex offenses, Coercion in the Second Degree, and Endangering the Welfare of a Child, the allegations being that he engaged in sexual intercourse with the complaining witness, a 12 year old girl. Although, as defense counsel correctly notes, defendant was convicted only of Endangering the Welfare of a Child, which is not a sex offense, the defendant's own statement confirms that his conduct, at least to an extent, "involved engaging in sexual activity with the victim" (see People v Brown, 62 AD3d 1209 [2009], supra). Contrary to defense counsel's assertion, the court's drawing such a conclusion is not an exercise in speculation about what the jury intended, or did not intend, by its verdict.
Defendant's statement on arrest was in the nature of an apology, stating, in sum and substance, that he was sorry; that he didn't know how old [the complaining witness] was; that they only had sex twice; and that he used a condom.
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The court finds the Department of Probation's requested modification to be "reasonably necessary to insure the defendant will lead a law abiding life" ([P.L.] §65.10[l]) and "necessary to prevent his future incarceration (see [P.L.] §65.10[5])" (People v Wahl, 302 AD2d 976 [4th Dept 2003], appeal denied 99 NY2d 659 [2003]). The imposition of this additional condition will not "render the sentence unduly harsh or severe" (id.). While the court finds the explanation offered by the Department for the failure to raise the issue of treatment earlier in the defendant's term of probation weak, that is an issue for the Department to address internally.
Accordingly, the court grants the Department of Probation's request for a modification of the conditions of defendant's probation to include participation in a sex offender treatment program. Defendant is directed to participate in any such program to which he is referred by his probation officer, and to complete such waivers as are necessary to permit the Department of Probation to monitor his progress therein. Participation shall continue until the completion of the program, or completion of the term of probation, whichever is first.
This constitutes the decision and order of the court.
Dated: January 15, 2015
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J.S.C.