Defendant was indicted for 276 sex offenses allegedly committed against his daughter

who was between 11 and 13 years old at the time the crimes were committed. Thereafter, to avoid the victim having to testify, a plea agreement was reached whereby defendant pleaded guilty to one count of Rape in the Second Degree and one count of Rape in the Third Degree with the understanding that he would be sentenced to six months in the County Jail and ten years probation. The court recalls being reluctant to go along with the agreement but the plea was entered on July 16, 2004, defendant was sentenced on September 7, 2004 and the risk assessment was done on October 4, 2004.

On November 17, 2004, the Probation Department filed a violation of probation report alleging that defendant was unwilling to comply with the rules and regulations of the sex [*2]offender treatment program while he was incarcerated and therefore was dropped from the program. Defendant denied the violation and a hearing was held before this court on February 22, 2005.

Helen Burrows was one of the two witnesses for the People at the hearing. She has a Masters Degree in Social Work from the University of Buffalo and has been working at Community Services for three and one-half years facilitating sex offender treatment groups. She facilitates the sex offender group at the Cattaraugus County Jail into which defendant had been placed. Defendant informed her that he would speak to her only about the two crimes he was convicted of and the two that he did speak about, he "minimized and justified." By this, Ms. Burrows explained that defendant blamed the victim and would not take responsibility for his behavior. Indeed, in later sessions he would retract something he had admitted to in a prior session. After six sessions, Ms. Burrows had defendant removed from the group because he was not benefitting and was detrimental to the group.

However, Ms. Burrows gave defendant a second opportunity to comply with his conditions of probation by meeting with him on an individual basis. Again, defendant was resistant, claiming that he only had to talk about the two offenses to which he had pleaded guilty. He consistently lacked insight as to how his behavior would impact a young girl and after three sessions, Ms. Burrows determined that defendant was non-compliant and discharged him from treatment.

Defendant's attorney raises two issues in his client's defense. First, relying on United States v. Antelope (No. 03-30334), a January 27, 2005 opinion from the Ninth Circuit Court of Appeals, he contends that no probationer should be compelled to incriminate himself to avoid having his probation violated. Defendant argues that if he admits other crimes to a treatment provider, the treatment provider is a mandated reporter who will have to report defendant's admissions, and defendant can then be prosecuted criminally simply by complying with his conditions of probation. That is undoubtedly a valid concern in some cases; however, that issue is not relevant here as defendant was not asked to incriminate himself on any uncharged crimes but was only asked about all of the incidents with the victim in this case. All of the other incidents involving this victim were covered by the plea.

Defendant next contends that it is premature to violate his probation because part of the sex offender treatment is breaking down a perpetrator's denial and getting him to open up and talk about his offending behaviors. That contention may have some superficial appeal. However, it is clear that this defendant was resistant from the beginning, refused to level with Ms. Burrows and did so deliberately rather than because of any reasons arguably related to a hesitancy to admit what he had done.

Accordingly, the court finds that the Probation Department has proven that defendant has violated his probation and the Court Clerk is directed to schedule a date for the imposition of sentence.

Dated: Little Valley, New York

March 7, 2005

_________________________ [*3]

HON. LARRY M. HIMELEIN