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Doe v County of Rensselaer

12-22-2009 New York:

Doe v County of Rensselaer
2009 NY Slip Op 51456(U)

In this proceeding, plaintiffs, registered sex offenders, are seeking to enjoin defendant Rensselaer County from enforcing sex offender residency restrictions contained in a local law. Plaintiffs now move for summary judgment pursuant to CPLR 3212. Defendant opposes the motion.

Rensselaer County Local Law 6 of 2006 became effective in July 2006 and it provides for residency restrictions for certain sex offenders. The local law defines the term "sex offender" as "a person who has been convicted of a sexual offense against a minor and has received a level 2 or 3 designation as defined under Article 6-C of the New York State Correction Law." The restriction provided for in the law is that "[a] sex offender as herein defined shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility." The following exceptions are provided for within the law:

... ... ...

The Court notes that this issue has been comprehensively addressed and analyzed by courts in Rockland County and Albany County (People v Oberlander, 2009 WL 415558[Sup. Ct. Rockland County January 22, 2009]; People v Blair, 23 Misc3rd 902 [Albany City Ct. February 18, 2009]). The opinions in those cases reference New York's detailed legislative scheme relating to the community management of sex offenders and concluded that the State has impliedly and expressly preempted the regulation and management of sex offenders, including sex offender residency restrictions (see id.). Specifically, New York has the Sex Offender Registration Act (SORA), also known as Megan's Law, the Sex Offender Management and Treatment Act, which created Article 10 of the Mental Hygiene Law, and also has statewide sex offender residency restrictions enforceable as a condition of parole or probation, detailed above.

As noted by plaintiffs, and as cited in the above two opinions, additional compelling proof is found in the Approval Memorandum to Chapter 568 of the Laws of 2008, which enacted changes to the Executive Law and the Social Services Law relating to prior approval by probation departments for sex offender housing. The Approval Memorandum states in relevant part that "the placement of these offenders in the community has been and will continue to be a matter that is properly addressed by the State." After considering New York's comprehensive legislative scheme, this Court concurs with the analysis in the recent court opinions addressing similar local laws.

Based upon the foregoing, this Court finds that sex offender residency restrictions are an area preempted by the State and therefore Rensselaer County Local Law No. 6 of 2006 is preempted and cannot be given effect.

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