People v Thatcher

[*1] People v Thatcher 2021 NY Slip Op 51304(U) Decided on June 15, 2021 City Court Of Poughkeepsie, Dutchess County Rudner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2021
City Court of Poughkeepsie, Dutchess County

The People of the State of New York

against

Wayne Thatcher, Defendant.



Docket No. CR 2516-17



Thomas J. Whalen, Esq.
Attorney for the Defendant
3146 Route 22
Dover Plains, New York 12522

Kristine Whelan, Esq.
Office of the District Attorney
236 Main Street
Poughkeepsie, New York 12601

Cynthia King, Senior Probation Officer
Ulster County Department of Probation
Brian M. Rudner, J.[FN1]

The Court read and considered the following papers in deciding the defendant's motion pursuant to CPL §410.90 for termination of his sentence of probation:

Papers Submitted
Notice of Motion 1
Affirmation of Thomas Whalen, Esq 2
Affidavit of Defendant 3
Exhibits 4-9
Affirmation of Kristine Whelan, Esq. in Opposition 10
Affirmation of Thomas Whalen, Esq., in Reply 11

On January 18, 2018, this Court (Hon. E. Loren Williams) sentenced the defendant to a term of imprisonment of forty-five (45) days and six years of probation supervision on his [*2]conviction for Forcible Touching, a class A misdemeanor in violation of Penal Law §130.52. The defendant now moves, pursuant to CPL §410.90, for termination of his sentence of probation. The People oppose the requested relief. For the reasons set forth herein, the defendant's motion is denied.

BACKGROUND[FN2]

At the time of his arrest for the instant offense, the defendant was 64 years old, a well-known attorney, and retired police lieutenant. On May 18, 2017, the defendant was arrested and charged with one count of Forcible Touching stemming from the defendant's touching and squeezing of the buttocks of one of his clients, J.G.[FN3] , on May 16, 2017, for his own sexual gratification. J.G. had been the defendant's client on various criminal matters between 2014 and the date of his arrest. In a written victim impact statement provided by J.G. to the Court prior to sentencing, she described escalating inappropriate — if not criminal — conduct by the defendant during the course of the attorney-client relationship, leading up to the incident for which the defendant was ultimately arrested and charged. The incident for which the defendant pleaded guilty involved his touching of J.G.'s buttocks while she was in his law office.

After his arrest on May 18, 2017, allegations surfaced regarding the defendant's inappropriate touching of other female clients as far back as 2015. The defendant was subsequently arrested and charged with multiple counts of Forcible Touching against an additional two victims. On September 8, 2017, the defendant pleaded guilty to one count of Forcible Touching (the aforementioned incident with J.G. in the defendant's law office) in satisfaction of all of the pending charges.

DISCUSSION

In order to grant a request for termination of a sentence of probation, the Court, "having regard to the conduct and condition of the probationer [must be] of the opinion that:

(i) the probationer is no longer in need of such guidance, training or other assistance which would otherwise be administered through probation supervision;(ii) the probationer has diligently complied with the terms and conditions of the sentence of probation; and(iii) the termination of the sentence of probation is not adverse to the protection of the public (CPL §410.90[3][a]).
The Court finds that the defendant has presented sufficient evidence to satisfy the first two prongs of the statute, especially given the minimal opposition from the People on these points.

As to the third prong of the statutory analysis — that termination is not adverse to the [*3]protection of the public — the defendant argues that, based upon his history, he is not a risk to the general public. He also asserts that termination will present no risk to his victim, J.G., because the full order of protection issued by the Court will remain in effect and because he plans to relocate to Florida to live in retirement with his wife.

The gravamen of the People's opposition, on which the determination of this motion necessarily rests, is this third prong of CPL §410.90[3][a]). The People contend that early termination of the defendant's probation would be adverse to the protection of the public. They point out that at the time of the original investigation into the defendant's activities, numerous women came forward to report allegations of sexual abuse and/or forcible touching by the defendant. The People characterize the defendant's misconduct as an on-going pattern of behavior over the course of several years, and not an isolated incident.

"In statutory construction, courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" (People v. Brown, 115 AD3d 155, 158 [2d Dept. 2014] [citations omitted]). Here, the language of CPL §410.90[3][a][iii] is clear: the sentence must not be terminated if termination will be adverse to the protection of the public. In 2001, the Governor signed into law the Sexual Assault Reform Act. Among numerous provisions in the Act addressing criminal acts of a sexual nature, the legislature doubled the period of probation supervision for misdemeanor sex offenders from 3 to 6 years. Recognizing the need for "better tracking and monitoring of sex offenders" (see Div. of the Budget Memo, NY Bill Jacket, 2000 S.B. 8238, Ch. 1), the legislature made this change "to better protect the public" (see Attorney General Memo in Support, NY Bill Jacket, 2000 S.B. 8238, Ch. 1).

The defendant argues, based upon his history, the Court should have no concern regarding protection of the general public (Whelan Aff., ¶6). The Court is not persuaded by the defendant's arguments. First, it is precisely the defendant's history that gives the Court pause. The defendant took advantage of vulnerable female clients for his own sexual gratification. His status as a retired police lieutenant and practicing attorney did not deter him from committing those acts then; to the extent the defendant relies on those former roles to argue he poses no risk to the public now, that argument rings hollow.

Second, given the severity of the defendant's offense and the Legislature's recognition of the need for enhanced monitoring of sex offenders in order to protect the public, the Court is not persuaded by the unsworn letter[FN4] offered by Brenden Garcia, a licensed mental health counselor, in support of the motion. At best, Mr. Garcia's letter could support the conclusion that the [*4]defendant presented a reduced risk to the public[FN5] . The Court finds this insufficient to establish that early termination would not be adverse to the protection of the public.

Notwithstanding the defendant's compliance with the terms of his probation, the Court is "very mindful of the finality of termination of probation" (People v. Ulerie, 2007 WL 4620845, 2007 NY Slip Op 34155 [Sup Ct, Kings County, 2007] [" once a court terminates probation, the court lacks jurisdiction to re-sentence a defendant should he or she commit another crime or violate any condition previously imposed by the court"]; see also People v. John P., 294 AD2d 951 [4th Dept. 2002]). Given the severity of the defendant's offense, and the risk of removing a sex offender from probation supervision, the Court simply cannot conclude that the protection of the public would not be adversely impacted by granting the defendant's motion.

Based upon the foregoing, the defendant's motion for termination of his sentence of probation is DENIED. Notwithstanding the Court's denial of the motion, the Court is willing to authorize the transfer of the defendant's probation supervision to the State of Florida. Should a proposed transfer order be presented to the Court, it will be signed forthwith.

The foregoing constitutes the Decision and Order of the Court.

June 15, 2021
Poughkeepsie, New York
Hon. Brian M. Rudner
Acting City Court Judge Footnotes

Footnote 1:I was designated Acting City Court Judge to preside over this matter until disposition by Order of the Hon. Kathie Davidson, Administrative Judge for the 9th Judicial District, dated March 4, 2021.

Footnote 2: The facts recited herein are taken from the parties' moving papers, as well as the Court's review of its files in the various matters involving the defendant.

Footnote 3: Pursuant to Civil Rights Law §50(b), the identity of the victim shall remain confidential.

Footnote 4:Although the District Attorney did not object to the submission of a quasi-medical opinion by way of an unsworn letter, the Court is entitled to discount the weight given, if any, to such a submission.

Footnote 5: The letter states, in part: "it is of [sic] my clinical judgement that Mr. Thatcher's successful program completion indicates a lowered level of risk to the community where community supervision may no longer be mandatory" (emphasis added).