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BECAUSE THE CRIMES INVOLVED ARE NOT “REGISTRABLE OFFENSES” AND NOTHING IN DEFENDANT’S CRIMINAL HISTORY WERE SEX OFFENSES, THE JUDGE SHOULD NOT HAVE IMPOSED SPECIALIZED SEXUAL OFFENDER CONDITIONS UPON DEFENDANT’S PROBATION (THIRD DEPT).

The Third Department, modifying the judgment of conviction, determined the specialized sexual offender conditions should not have been imposed upon defendant’s probation because the underlying offenses had no connection to sex offenses:

Although neither burglary in the third degree (see Penal Law § 140.20), the crime for which defendant was indicted, nor criminal trespass in the second degree (see Penal Law § 140.15 [1]), the crime for which defendant was convicted, qualify as registerable offenses under Correction Law § 168-a (2), we previously have held that it may be “proper to impose sex offender conditions in cases which do not technically qualify as sex offender cases, . . . so long as the conditions imposed are reasonably related to the defendant’s rehabilitation, are reasonably necessary to insure that the defendant will lead a law-abiding life, and are necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . That said, upon reviewing defendant’s criminal history and considering the circumstances underlying the crime of conviction, we agree with defendant that the specialized sexual offender conditions imposed by County Court do not meet that standard.

Regardless of whether defendant completed sex offender treatment prior to being successfully discharged from probation in Florida in September 2000, the fact remains that — in the nearly 25 years that have elapsed since then — defendant has not been charged with any additional sex offenses; indeed, prior to the underlying trespass incident in March 2023, it appears that defendant — with the exception of an unspecified “criminal registration” offense in Florida in November 2000 — was not charged with any new crimes at all. Additionally, the criminal trespass conviction did not stem from defendant entering a school, no children were present at the time of the offense (or otherwise involved or implicated in its commission) and the underlying crime was not even tangentially related to either a sex or child welfare offense … . Under these circumstances, County Court abused its discretion in imposing the specialized sexual offender conditions upon defendant’s probation. People v Rhodehouse, 2025 NY Slip Op 03228, Third Dept 5-29-25

Practice Point: Although specialized sexual offender conditions can be imposed upon probation where the underlying crimes are not sex offenses, here it was an abuse of discretion to do so, based upon the absence of sex offenses from defendant’s criminal history.

 

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