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Penal Law § 140.25 [3] …cont

On 20 June 2005, respondent was convicted upon a plea of guilty of two counts of burglary in the second degree under Penal Law § 140.25 [3] and was sentenced to concurrent terms of incarceration. As respondent neared his release date, petitioner filed a sex offender civil management petition contending, inter alia, that the underlying facts of respondent’s crimes revealed a sexual motivation.

On the other hand, the petitioner alleged that respondent had admitted that he burglarized various homes with the intent to molest young children. Although respondent never actually molested the children, he admitted that, on one occasion, he had removed the clothes and diaper from a two-year-old child, but fled the scene when the child began to cry.

The court notes that the respondent has a criminal history replete with evidence of sexually motivated offenses. At age 15, he sexually abused two eight-year-old boys in his neighborhood. At age 19, he was observed masturbating in front of young boys while at a YMCA, and he violated his sentence of probation by refusing sex offender treatment. When respondent was 21, he was arrested for trespassing at a church and daycare facility and was found to be in possession of a photo album containing the pictures of small children who attended the church and daycare. Shortly after that arrest, respondent engaged in the conduct that resulted in the burglary convictions. When arrested for the burglaries, he was located near a school where, over the course of several months, he had been observed watching the children.

It is the petitioner’s allegation that respondent was a detained sexual offender who fell within the ambit of article 10 because he was convicted of a designated felony under Mental Hygiene Law § 10.03 (f) that was sexually motivated and was committed prior to the effective date of article 10.

The respondent moved to dismiss the petition on the ground that his constitutional rights to due process and equal protection were violated since the reasonable doubt standard should be applied to prove the element of sexual motivation, rather than the lower clear and convincing standard. The District Court granted in part and denied in part plaintiffs’ motion for a preliminary injunction. With respect to those individuals convicted of designated felonies before the effective date of article 10, the District Court concluded that, on the record before it, plaintiffs had not demonstrated a likelihood of success on the merits with respect to their contention that the application of the clear and convincing standard to prove the sexual motivation element violated due process. The District Court also concluded that there was a rational basis for the disparate treatment of those individuals convicted before and after the effective date of article 10 and thus rejected plaintiffs’ equal protection argument.
The court concludes that the order in this proceeding should be affirmed.

To Be cont…..

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