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A Western District of New York judge’s tough probation conditions on a man convicted of bank larceny — imposed, in part, because the man had an earlier, unrelated sex offense — have been struck down by the 2nd U.S. Circuit Court of Appeals. A three-judge panel said Judge William M. Skretny gave too much discretion to defendant Larry Peterson’s probation officer in the case, United States v. Peterson, 00-1273. Skretny’s sentence was imposed after Peterson pleaded guilty to bank larceny for writing bad checks to keep his failing computer business afloat. Peterson was sentenced to five years’ probation, with six months to be served in “intermittent confinement” and another six served in home detention. But Skretny also imposed special conditions on Peterson’s term of probation for three reasons: Peterson had a 1996 New York State conviction for incest; he had accessed legal adult pornography Web sites before his sentencing; and his probation officer deemed him a “great risk to the community.” Those conditions included an order to stay off the Internet and stay away from computer equipment of any kind, “except for employment purposes as authorized by the probation officer.” Peterson was ordered to enroll in “mental health intervention” for the treatment of sexual predators, and stay in the program until the probation officer and the “treating agency” agree he can leave. Skretny also said Peterson could not enroll in an educational or vocational program without the agreement of the officer, and he was prohibited from going near school grounds, parks, “or any other area where children are likely to congregate.” On appeal to the 2nd Circuit, Peterson argued that Skretny was wrong to impose the special conditions based on a prior sex-offense conviction. By a per curiam opinion, the court noted that a trial judge has the discretion under 18 U.S.C. Section 3553 to impose special conditions on probation so long as they are reasonably related to the nature and circumstances of the offense and the history of the defendant. The special conditions must also meet a number of other criteria, including the need to promote respect for the law, deter criminal conduct, protect the public and provide the defendant with training, medical care “or other correctional treatment in the most effective manner.” The appellate court, however, found that Judge Skretny’s “broad restrictions on Peterson’s computer ownership and Internet access are not ‘reasonably related,’ ” to Peterson’s crime or history. “Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering,” the court said. “The fact that a computer with Internet access offers the possibility of abusive use for illegitimate purposes does not, at least in this case, justify so broad a prohibition.” NO CONNECTION FOUND Moreover, the court found there was no connection between Peterson’s incest conviction and computers or Internet access. Under the Sentencing Guidelines, judges are allowed to impose occupational restrictions, the court said, but “nothing in the record suggests that the Internet and computer restrictions are ‘reasonably necessary’ … to protect the public or to deter Peterson from continuing to engage in the conduct for which he was convicted, i.e., bank larceny based on payments made with bad checks.” The court then said Judge Skretny had the right to mandate sex offender therapy for Peterson, but ruled that “if Peterson is required to participate in mental health intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer.” Remanding the case for resentencing, the court said Skretny could well rule that sex offender treatment was mandatory while leaving “a variety of details, including the selection of a therapy provider and schedule to the probation officer.” Finally, the court said that a requirement that Peterson notify potential employers or educational institutions about his incest conviction could not stand because it was “unrelated” to the bank larceny conviction. Judges Amalya Kearse, Pierre N. Leval and Jose A. Cabranes issued the unsigned opinion in the case. Assistant U.S. Attorney Gretchen L. Wylegala represented the government. Marianne Marino and Marybeth Covert of the Federal Public Defender’s Office represented Peterson.

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