The defendant appeals from the judgment of the Village of Dundee Court, alleging the sentence imposed was harsh and excessive. The defendant was convicted upon a plea of guilty for Forcible Touching and Criminal Contempt, second degree, both class A misdemeanors, following his guilty plea.

The defendant was sentenced on October 11, 2006, to concurrent terms of shock probation for each crime; 60 days jail and three years probation for Criminal Contempt in the Second Degree and 60 days jail and six years probation for Forcible Touching. The court issued an Order of Protection and imposed surcharges and fees. Defendant's terms of probation for the Forcible Touching conviction contain the following special conditions:

6. You shall not engage in any occupation or volunteer in any activity that brings you into contact with anyone under 17 years of age unless otherwise agreed upon by your probation officer and the therapist(s);

7. Stay away from places when children are known to congregate, including but not limited to parks, schools, playgrounds, beaches, public pools, community centers, game rooms, day care facilities, youth sport activities or youth groups; and

8. Have no unsupervised contact with any person less than 17 years old or remain in a home overnight, not your own, where persons under 17 years of age reside, unless previously [*2]agreed upon by your probation officer, therapist and the parents of said child."^[FN1]

The defendant argues that these terms of probation are unduly harsh and excessive because he has a 16 year old son, and he is not allowed to have any contact with him. He argues that the term should allow him contact with a person under 18 if the child is accompanied by an adult, and that he be allowed to remain overnight in a home not his own where a person under 18 resides if the parents of the child and the defendant's probation officer agree.

Defendant points to the many written statements made by community members on his behalf, and included in the sentencing memorandum submitted by his counsel. He argues that this is evidence that the community does not fear him, and the present restrictions are too onerous, and therefore, should be modified.

The People oppose modification of the sentence. They note that the sentence is appropriate, given the fact that defendant is a repeat sex offender, having been convicted in 1994 for sexual misconduct. Further, the People note that the defendant's sentence involves incidents that occurred on two separate occasions.

The People argue that the conditions of probation are reasonably necessary to insure that the defendant leads a law abiding life, and such conditions will prevent him from having an opportunity to commit similar crimes in the future, citing People v Griffith, 239 AD2d 705; People v McAllister, 150 AD2d 913.

Pursuant to CPL 470.15[6][b], an intermediate appellate court has "broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range." People v Delgado, 80 NY2d 780, 783, citing People v Thompson, 60 NY2d 513, 519. The appellate court is to be guided by the interests of justice.

The Court finds that the lower court did not abuse its discretion, and the sentence should not be overturned in the interests of justice. The sentence imposed was not harsh and severe since the court was guided by its responsibility to protect children in the community. The term requiring the defendant to have no contact with anyone under 18 years of age is not unreasonable, given the nature of the underlying crime for which he was convicted, his prior conviction for a similar crime, and the danger he poses to unsuspecting children. People v. Griffin, supra; see also People v. Roberge, 293 AD2d 913; People v. Lamb, 16 AD3d 705. The Court is also mindful of the provisions of Penal Law §65.10(4-a) prohibiting sex offenders from knowingly entering school grounds, or other facility used for the care or treatment of minors while such minors are present.

The judgement of the lower Court is affirmed in all respects and the appeal is dismissed.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: January, 2007________________________________ [*3]

W. Patrick Falvey

Yates County Judge