People v Mikol

[*1] People v Mikol 2007 NY Slip Op 52247(U) [17 Misc 3d 1133(A)] Decided on October 31, 2007 Criminal Court Of The City Of New York, New York County Coin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2007
Criminal Court of the City of New York, New York County

People of the State of New York

against

John Mikol, Defendant.



2005NY067886



Defendant was represented by Christopher W. McClure, Esq., Reisman, Rubeo & McClure, LLP, One Barker Ave., Suite 180, White Plains, NY 10601, 914-831-4200. The New York City Department of Probation was represented by Matilde Leo, Esq., New York City Department of Probation, 100 Centre Street, New York, NY 10013.

Ellen M. Coin, J.

Defendant was convicted upon his plea of guilty to Endangering the Welfare of a Child (Penal Law §260.10(1)) and sentenced to three years of probation and five days of community service. [FN1] By Order to Show Cause he now moves this Court, in the alternative, for an order (1) pursuant to CPL §§410.20 and 410.50(1), modifying the conditions of his probationary sentence, or (2) pursuant to CPL §440.10 vacating the judgment on the ground that it was procured by duress, misrepresentation, or fraud on the part of defendant's prior attorney, the Court or the prosecutor and/or was obtained in violation of his constitutional rights. The Department of Probation opposes the motion.

In essence, defendant's claim is that the Department of Probation has imposed as a condition of his probation attendance at a program for sex offenders, a condition never prescribed by the sentencing court.

In addition to the charges to which defendant pled guilty, the complaint charged counts of Sexual Abuse in the Third Degree (Penal Law §130.55), Forcible Touching (PL §130.52), Identity Theft in the Third Degree (PL §190.78(2)), and Harassment in the Second Degree (PL §240.26(1)). Months before defendant's guilty plea, the Court (Ferrara, J.) entered a decision and order dismissing the Forcible Touching count for facial insufficiency. Although the factual allegations of the complaint claimed that the victim of the sexual abuse was less than eighteen years old, defendant did not plead guilty to the Sexual Abuse charge which remained in the [*2]complaint; had he done so, he would have been required to register as a sex offender under the Sex Offender Registration Act (Correction Law Art. 6-C).

Criminal Procedure Law §410.10(1) provides, in pertinent part, "When the court pronounces a sentence of probation...it must specify as part of the sentence the conditions to be complied with. Where the sentence is one of probation, the defendant must be given a written copy of the conditions at the time sentence is imposed." This duty of the Court cannot be delegated to the probation department or to any other party. See People v Fuller, 57 NY2d 152, 156 n3 (1982); Preiser, Practice Commentaries, McKinney's Criminal Procedure Law §410.10 (2005). See also Gallo v Pataki, 15 Misc 3d 824 (2007); People v K.D., 4 Misc 3d 776 (2004); People v McDonald, 136 Misc 2d 1047 (1987).

Significantly, the notations on the Court file entered by the judge who took defendant's plea indicate that the promised sentence was to be probation, five days of community service and a final order of protection. There is no indication that a program for sex offenders was to be part of the sentence. In accordance with the bargained-for plea, I imposed a sentence of three years' probation, five days of community service and a final order of protection. In addition, the written conditions of probation which I executed at sentence contained no requirement of a program for sex offenders.

The Probation Department now contends that its requirement that defendant undergo sex offender treatment is appropriate in light of the factual allegations contained in the complaint.[FN2] While it may be that defendant could benefit from such treatment, it was not part of the bargained-for sentence, nor was it a condition imposed at sentencing.

Accordingly, the Court grants so much of the motion as seeks elimination of the newly-imposed condition. It is hereby ordered that the Department of Probation remove the requirement that defendant attend a "sex offender" class.

Defendant's motion papers fail to allege a single fact to support his claim of "duress, misrepresentation, or fraud on part [sic.] of the defendant's prior attorney, the Court or the prosecutor" or that the judgment was obtained in violation of his constitutional rights. Therefore, the portion of the motion which seeks to vacate the judgment is denied. CPL §440.30(4)(a), (b).

This is the decision and order of the Court.

DATED : NEW YORK, NEW YORK

October 31, 2007

JCC Footnotes

Footnote 1:Defendant was also convicted upon his guilty plea herein of Criminal Impersonation in the Second Degree (Penal Law §190.25(1)) and sentenced to time served on that charge.

Footnote 2:Notably, in its presentence report the Department did not recommend such treatment. Instead, it stated, "Jail is strongly recommended," and also recommended that defendant enroll in a mental health program.