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Sex-offender conditions may be attached to the probation of a person who has been convicted of an obscenity offense, not a sex crime, a Westchester County, N.Y., Supreme Court justice has ruled. Justice Daniel D. Angiolillo said that the Westchester County District Attorney and Department of Probation could impose “sex-offender conditions” upon a defendant who pleaded guilty to one count of attempted distribution of indecent material to a minor. Sex-offender conditions could be imposed, however, only if law enforcement officials show a “factual nexus” between a condition, such as requiring treatment, and the defendant’s circumstances, the court said. Justice Angiolillo said the case was the court’s “first opportunity to address the proposed sex-offender conditions.” Westchester County officials did not seek sex-offender registration, as in Megan’s Law, nor did they require that the defendant be included in a statewide DNA index. But among the conditions approved by the court was mandatory participation in a sex-offender treatment program and a prohibition against loitering at locations likely to be frequented by unsupervised children. The court struck down a proposed condition that would have required the defendant to seek prior approval from the Department of Probation for a change in address. Generally, the conditions developed by the Department of Probation are not imposed on persons convicted of obscenity offenses, the court observed. That is because the statutory definition of “sex offense” does not extend to crimes involving the possession or distribution of obscene or indecent materials. “The fact [that] obscenity offenses are not included in the scope of the [definition included in the Sex Offender Registration Act] does not preclude the imposition of ‘sex offender’ conditions to this defendant,” Angiolillo said. In People v. Manson, 00/0292, the defendant Charles Manson — not the infamous convicted murderer — was caught in a sting operation in which District Attorney’s investigators gained access to online chat rooms where they posed as minors, in an effort to find individuals who would solicit sex from children. According to the Westchester County District Attorney, Manson engaged in online conversations with the investigators, in which he solicited sex from a person whom he believed to be a 14-year-old girl, and described the type of sexual activities he would like to engage in with her. He pleaded guilty to the charge of attempted distribution of indecent material to a minor, and was scheduled to be sentenced to a term of probation. Manson’s lawyer, however, objected to the District Attorney’s demand for sex-offender conditions, arguing that his client had not pleaded guilty to a sex offense. REHABILITATION But Angiolillo said that the court may assess the “particular rehabilitative needs and circumstances of each defendant” in fashioning appropriate conditions. While the county Department of Probation has listed 30 special conditions applicable to sex offenders as a standard response, some of those conditions may be appropriate for a person who is not a sex offender but whose crime involves some form of sex-related misconduct. As a matter of fact, Angiolillo pointed out, the 30 special conditions may be tailored to the rehabilitative needs of a sex offender. The key to fixing conditions in a lawful way, Angiolillo said, is “particularized input from the Department of Probation,” whether the defendant is a sex offender or not. “If the department’s professional opinion in a given case is that all of the standard conditions should be imposed, a factual nexus between the defendant and the condition should be set forth,” Angiolillo said. The court approved psychiatric and psychological evaluation, including a psycho-sexual evaluation, participation in sex-offender treatment, and signing of a specified treatment contract. Angiolillo also approved conditions that would require the defendant to submit to testing of his sexual response to stimuli, and to polygraph tests. “The use of the penile [stimulus test] may involve some measure of emotional discomfort to the defendant,” Angiolillo wrote. “However, the use of the procedure as part of the assessment of defendant is a reasonable condition to ameliorate defendant’s conduct that gave rise to the offense and to prevent the incarceration.” Angiolillo also approved a condition forbidding Manson from using online chat rooms or other computer communication such as e-mail without permission from the Department of Probation. He is also banned from residing with children who are not his own. But since there is no victim in the case, three conditions forbidding contact with victims were stricken. The court also declined to impose conditions dealing with alcohol or drug abuse, since those issues played no part in the case. Westchester County Assistant District Attorney Kenneth Citarella handled the prosecution. Diane Webster of the Legal Aid Society of Westchester County represented Manson.

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