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People v Oberlander

1-22-2009 New York:

People v Oberlander
2009 NY Slip Op 50274(U)

Following a Violation of Probation hearing in this matter, the defendant moved for an Order dismissing the violation. The defendant claimed Local Law No. 1 of 2007 was preempted by New York State Law.

The Violation of Probation alleges that the defendant violated the conditions of probation in that he "moved to a residence within 1,000 feet of a Rockland County pedophile-free child safety zone' in violation of Local Law No. 1 of 2007." Local Law No. 1 of 2007 provides that a sex offender shall not reside, work or loiter within a child safety zone. "The term child safety zone shall mean one thousand feet of the real property comprising a public or private, elementary, middle or high school, child care facility, park playground, public or private youth center or public swimming pool." Id.

The Court previously considered a pre-hearing motion to dismiss based upon the Constitutionality of the local law. In a decision and Order dated June 18, 2008, this Court held that Local Law No. 1 of 2007 was not Unconstitutional on its face or as applied to the defendant.

The defendant's Constitutional challenge was based upon the Free Exercise Clause of the First Amendment. The defendant claimed that because he is an observant orthodox Jew, he must live within walking distance of a Schul or temple. As a result he claims that the statute placed a burden on the practice of his religion. However, this Court held that the statute was facially neutral and did not unduly burden the defendant's practice of his religion. In that prior motion, the Court was not presented with the claim that Local Law No.1 of 2007 was preempted by State legislation.

Sex offender residency restrictions are multiplying throughout New York State, as local legislatures scramble to outmaneuver each other with highly restrictive ordinances designed to banish registered offenders from their communities.

"Not in my backyard" residency restrictions are spreading unchecked through county, town and village ordinance books from Suffolk County to Niagara Falls. More than 80 such laws have recently been enacted in New York. Police and prosecutors are now enforcing them, ordering offenders to move from restricted zones and filing criminal charges for non compliance. Even without vigorous enforcement, the ordinances interfere with parole and probation officers' efforts to find suitable housing for offenders. Alfred O'Connor, State Preemption of Local Sex-Offender Residency Laws N.Y.L.J. November 24, 2008 (hereinafter O'Connor).

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"Under [the preemption] doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the State's transcendent interest.'" Ba Mar, Inc. v. County of Rockland,164 A.D.2d 605 (2nd Dep't 1991)(quoting Albany Area Builder's Assoc. v. Town of Guilderland,74 N.Y.2d 372 (1989)). "On the other hand, the mere fact that both the State and local governments seek to regulate the same subject matter does not, in and of itself, render the local legislation invalid on preemption grounds.

In order for the preemption doctrine to prohibit local legislation in a particular area there must be an intent on the part of the State to occupy the entire field." Id. "The legislative intent to preempt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area." N.Y.S. Club Assoc. v. City of NY,69 N.Y.2d 211, 217 (1987). Additionally, "that intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area." Albany Area Builder's Assoc. v. Town of Guilderland,74 N.Y.2d 372, 400 (1989).

In nearly factually identical circumstances, a New Jersey Appellate Court struck down local legislation imposing housing restrictions of sex offenders holding that State law preempted local legislation (preempting more than 100 local sex offender ordinances). G.H. v. Township of Galloway,401 N.J.Super. 392 (App. Div. 2008). In doing so, that Court held that New Jersey's version of Megan's Law constituted a comprehensive legislative scheme enacted to protect citizens from sex offenders. Id.

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According to his probation officer, the defendant submitted fifteen addresses for approval. Each time, the probation officer rejected the address as it fell within a safety zone. The probation officer conceded that no appropriate addresses existed in the Village of Monsey and that it was likely that none existed in the Town of Ramapo.

It is clear that the defendant tried to comply with the law
. The defendant, on approximately fifteen occasions was able to find available housing. Each time, the defendant's proposed residence was rejected, not based upon the Probation Department's assessment of suitability, but, solely because it violated Local Law No.1. There was no resource available that would allow the defendant to determine the suitability of housing prospectively. The cumbersome procedure only exacerbates the central problem facing the defendant, namely, the lack of housing in suitable locations.

Accordingly, the defendant's motion is granted and the Violation of Probation is dismissed.

This Decision shall constitute the Order of the Court.

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