The defendant was originally charged with the felonies of Rape in

the Third Degree, P.L 130.25(2) and Criminal Sexual Act in the Third Degree, PL. 130.40(2).

The defendant eventually plead guilty, pursuant to a plea offer, to Sexual Misconduct, P.L.

130.20(2) a Class A misdemeanor, on October 27, 2006. On that date a Sex Offender

Registration Act Hearing, i.e. "a SORA Hearing", was conducted, wherein the defendant was

found to be "Level 1" sex offender. In addition, the defendant was sentenced to six years

probation.

On May 16, 2007 the defendant returned to court for the purpose of answering a request

by the Monroe County Probation Department to modify the terms of his probation. Specifically [*2]

the Probation Department requested that item "8" of the "Conditions Regarding Child and/or

Victim Contact" be modified. Said condition originally stated as follows:

" Pursuant to section 65.10(4-a) of the New York State Penal Law, Probationer

shall refrain from entering into or upon any school grounds, or any or other facility

or institution primarily used for the care or treatment of persons under the age of

18, without the written permission of the probation officer and the superintendent

or chief administrator of such facility, specifying the purpose of said visit."

The Probation Department requested that said term of probation be modified to read as follows:

"Pursuant to section 65.10(4-a) of the New York State Penal Law, Probationer

shall refrain from entering into or upon any school grounds (including any

building, structure, athletic playing field, playground or land contained within

the real property boundary line of a public or private elementary, parochial,

intermediate, junior high, vocational, or high school), or any other facility

or institution primarily used for the care or treatment of persons under the

age of 18, or any area accessible to the public, including sidewalks, streets

parking lots, parks, playgrounds, stores and restaurants, or any parked

vehicle, located within one thousand feet of the real property boundary

line comprising any such school, facility or institution, without the written

permission of the probation officer and the superintendent or chief

administrator of such facility, specifying the purpose of the visit."

The matter was adjourned June 6, 2007 to allow the defendant to obtain an attorney. On that

date defendant's attorney submitted motions objecting to the modification of said probation term.

Issues Presented

The defendant objects to the modification of said probation condition, alleging violations

of the Article I Section 5 (Cruel and Unusual Punishment) and Section 6 (Due Process) of the

New York State Constitution and the Eighth (Cruel and Unusual Punishment) and Fourteenth

Amendment(Due Process) of the United States Constitution. Defense counsel further argues that

if the court is not willing to summarily deny the modification of the said term of probation, it [*3]

should conduct a hearing on the issue of whether the modification of the said condition of

probation is a violation of defendant's substantive due process rights under both the New York

and United States Constitutions. Defense counsel further argues that if the court refuses to grant

any of the previous relief requested, then the court should incorporate its own definition of what

constitutes "school grounds". Finally defense counsel argues that in the alternative a hearing

should be conducted to determined if any exceptions to the imposition of the restrictions imposed

by Penal Law 65.10(4)(a) should be recognized by the court.

Legal Analysis.

The court takes judicial notice of Penal Law Section 65.00(2) which states in reference

to a sentence of probation that "The court may modify or enlarge the conditions, or if the

defendant commits an additional offense or violates a condition, revoke the sentence any time

prior to the expiration or termination of the period of probation." Thus there is no condition

precedent required before a court can modify the terms of a defendant's probation. Obviously, in

so doing, the court must not run afoul of the constitutional rights of the defendant or of any

statutory or case law.

Penal Law 65.10(4)(a) states as follows:

"Mandatory condition for sex offenders. When imposing a sentence of probation or conditional discharge upon a person convicted of an offense defined in article one hundred thirty, two hundred thirty-five or two hundred sixty-three of this chapter, section 255.25, 255.26 or 255.27 of this chapter, and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender pursuant to subdivision six of section 168-l of the correction law, the court shall require, as a mandatory condition of such sentence, that such sentenced offender shall refrain from knowingly [emphasis added] entering into or upon any school [*4]grounds, as that term is defined in subdivision fourteen of section 220.00 of this chapter, ^[FN2] or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present, [emphasis added] provided however, that when such sentenced offender is a registered student or participant or an employee of such facility or institution or entity contracting therewith or has a family member enrolled in such facility or institution, such sentenced offender may, with the written authorization of his or her probation officer or the court and the superintendent or chief administrator of such facility, institution or grounds, enter such facility, institution or upon such grounds for the limited purposes authorized by the probation officer or the court and superintendent or chief officer. Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender."

First of all, based on the language of P.L. 65.00(2) this court has the authority to modify

the terms and conditions of the defendant's probation at any time during the period of probation

in question. Second, incorporation of the specific language of P.L. 65.10(4)(a) and 220.00(14)

into the terms and conditions of the defendant's probation would not violate any of the

defendant's state or federal constitutional rights. Lastly, no question of fact remains in

controversy, which obviates the need for a hearing relative to the issue of the modification of the

terms and conditions of defendant's probation. [*5]

Conclusion.

Defendant's motion is hereby denied in part, because the language proposed by the

Monroe County Probation Department, to modify one of the conditions of defendant's

probation, does include some of the pertinent language of P.L. Section 65.00(4)(a) and

220.00(14). However, defendant's motion is granted in part, because some of the pertinent

language of P.L. Section 65.10(4)(a) was not included in the proposed modified condition of

probation. Thus, the condition of probation in question is hereby modified to include all the

pertinent language of the said P.L. Sections 65.10(4)(a) and 220.00(14).In accordance

therewith, the terms and conditions of defendant's probation is modified to state as follows:

Probationer shall refrain from knowingly entering into or upon any school grounds (including any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school),^[FN3] or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of 18 are present or any area accessible to the public, including sidewalks, streetsparking lots, parks, playgrounds, stores and restaurants, or any parked vehicle, located within one thousand feet of the real property boundary line comprising any such school, facility or institution, without the written permission of the probation officer and the superintendent or chief administrator of such facility, specifying the purpose of the visit.^[FN4]

This court has examined the remaining arguments of the defendant and finds them [*6]

without merit. This constitutes the decision and order of this court.

Dated: September 19, 2007

Webster, New York

E N T E R,

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice