Decision of Interest
New York Law Journal
June 24, 2003
People v. Yoel Oberlander - The Court held a sex offender classification hearing pursuant to 168 of the Correction Law. The hearing was held to classify the above named defendant who had just been sentenced to six years probation following his conviction for Sexual Abuse in the Second Degree. The defendant was present and was represented by counsel.
In connection with the hearing, the Court reviewed the pre-sentence report with pre-sentence memoranda, as well as the risk assessment instrument prepared by the District Attorney's Office. The Court examined psychiatric and psychological reports from Dr. Thomas and Dr. Berlin respectively. Additionally, the Court heard testimony from Dr. Thomas concerning his clinical opinion regarding the defendant risk to re-offend and the defendant's course of treatment, including the inter-muscular anti-androgen therapy.
Dr. Thomas has indicated that he has undertaken the responsibility of continuing therapy with the defendant. As part of that continuing treatment, in conjunction with weekly psychotherapy, Dr. Thomas will continue with the monthly injections of Depo-Lupron and continue to monitor the levels of testosterone in the defendant's blood. Further, Dr. Thomas has assured the Court that he will report any problems to the defendant's probation officer.
As a result of the treatments so far, the testosterone level in the defendant's blood has been significantly lowered. According to Dr. Thomas, the defendant has been "chemically castrated" and thereby rendered virtually asexual.
The recommendation contained in the Risk Assessment Instrument is the presumptive risk level to be applied to an offender. In this case, the defendant received an aggregate score of 85 points when scored by the District Attorney, making him a presumptive level two.
The Court finds that consistent with the risk level instrument, the defendant should be classified as a "level 2" offender. The Court bases its determination on an evaluation of the criteria set forth in Correction Law 168-l(5) including, but not limited to, the defendant's history, the nature of the offense, the number of victims and vulnerability of the victims.
The defendant contends the Risk Assessment Instrument is erroneous in that he did not employ forcible compulsion (10 points) and that the evidence did not demonstrate three or more victims (30 points). In fact, in a prior incident, the defendant made admissions of exposing his penis to young girls on five occasions over the two week period prior to his arrest. Five victims signed depositions in reference to exposure incidents in which the defendant was identified. Forcible compulsion is not confined to physical force, but may be found to result from a threat, express or implied, which must be viewed in the context of a frightened eleven year old girl alone in an automobile with an adult who has placed his hand under her dress.
In any event, the factors listed in the statute are not exhaustive and special circumstances may warrant a departure from the presumptive risk level if aggravating factors are present. The Court finds that an override would be warranted in any event, since the defendant has a psychological abnormality that decreases his ability to control impulsive sexual behavior. Dr. Berlin's report demonstrates that the defendant has a sexual disorder that manifested itself in a pattern of genital exhibitionism that escalated in his fondling of a young girl.
The defendant's sexual fantasies and recurrent urges concerning sexual activities with young girls continued even after intervention. Thereafter, aggressive pharmocological treatment in the form of Depo-Luperon medication was recommended to suppress the production of testosterone, to increase the defendant's capacity for self-control and to prevent sexual criminality.
While the defendant's course of treatment will undoubtedly have the physical effect of lowering the defendant's testosterone, the Court has not been provided with sufficient evidence such that it can determine that the treatment will alleviate the risk of re-offense. While intuitively, the Court understands that an elevated testosterone level will increase sexual urges, there is insufficient evidence to conclude that an elevated testosterone level was the sole cause of the defendant's actions.
Additionally, Dr. Thomas' experience with the Depo-Luperon treatment is anecdotal, and his personal experience with long term treatment is non-existent. According to Dr. Thomas, he has treated a total of eight patients with this inter-muscular anti-androgen therapy. However, the longest he has treated any one of those patients was two and one half years. It is anticipated that the defendant's course of treatment will exceed two and one half years.
While Dr. Thomas was no doubt earnest in his belief that the defendant does not pose a risk to re-offend in the future, that position is not supported by any personal experience. Further, the Court has not received a report of any reliable study of the long term efficacy of this course of treatment.
Accordingly, the Court finds that the public would be best served if the defendant were required to register as a level two offender.
This Decision shall constitute the Order of the Court.