| People v Hannah |
| 2009 NY Slip Op 06869 [65 AD3d 1378] |
| September 29, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Herbert Hannah, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo and GuyArcidiacono of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered September 6, 2007, convicting him of rape in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
In 2007 the defendant was convicted, upon his plea of guilty, of rape in the second degreefor engaging in sexual intercourse with a 14-year-old victim and was sentenced to 10 yearsprobation. The sentence of probation included certain "Sex Offender Conditions of Probation"which, inter alia, prevented the defendant from living "at a location where anyone under the ageof 18 resides without the permission of the Probation Officer." The defendant contends that thesubject conditions of probation violated his constitutional right to participate in the care, custody,and management of his natural children.
Penal Law § 65.10 authorizes a court to impose conditions of probation which "thecourt, in its discretion, deems reasonably necessary to insure that the defendant will lead alaw-abiding life or to assist him to do so" (Penal Law § 65.10 [1]). When imposing asentence of probation, the court may require the defendant to comply with "any other reasonablecondition as the court shall determine to be necessary or appropriate to ameliorate the conductwhich gave rise to the offense or to prevent the incarceration of the defendant" (Penal Law§ 65.10 [5]; see People v Rocco, 309 AD2d 882 [2003]). The statute also grantsthe court "wide latitude" to require a defendant to "[s]atisfy any other conditions reasonablyrelated to his [or her] rehabilitation" (Penal Law § 65.10 [2] [l]; see People vGriffith, 239 AD2d 705, 706 [1997]). Under the circumstances, the subject conditions ofprobation were reasonably necessary to ensure that the defendant will lead a law-abiding life(see People v McAllister, 150 AD2d 913, 914 [1989]), and were reasonably related toadvancing the defendant's rehabilitation for the sexual offense he perpetrated on the 14-year-oldchild (see People v Swenson, 12 AD3d 948 [2004]; People v Griffith, 239 AD2dat 706).
We reject the defendant's contention that the subject conditions of probation violated hisconstitutional rights (see People v Whindleton, 54 AD3d 422, 423 [2008]; People vWahl, 302 AD2d 976 [2003]).[*2]"Although parents enjoy aconstitutionally protected interest in their family integrity, this interest is counterbalanced by thecompelling governmental interest in the protection of minor children, particularly incircumstances where the protection is considered necessary as against the parents themselves"(Wilkinson ex rel. Wilkinson v Russell, 182 F3d 89, 104 [1999] [internal citations andquotation marks omitted], cert denied 528 US 1155 [2000]). Accordingly, the subjectconditions of probation were properly imposed and were not violative of the defendant'sconstitutional rights. Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.