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Top court strikes down Nassau County sex offender residency law

2-17-2015 New York:

Local governments cannot impose their own conditions on where sex offenders may live, New York’s highest court ruled Tuesday, striking down a Nassau County law.

The Court of Appeals said that state law covering sex offenders supersedes any local laws and, therefore ... ... .....Sub Req.. by YANCEY ROY

Judge Rules Some Sex Offender Laws Too Restrictive

In most cases, local governments are given the freedom to enact legislation intended to enhance state laws to better serve their local communities. But when it comes to restricting where sex offenders can live, a state Appellate Court judge has ruled the state restrictions are enough and the rest should be thrown out. Cara Thomas explains how this ruling could affect local communities.

The appellate case was The People versus Michael Diack, a Level 1 sex offender who was charged with violating a local law in Nassau County, which restricts all sex offenders from living within 1,000 feet of a school.

Judges ruled in his favor saying the local law was too restrictive and needed to be thrown out.

State law said only the most dangerous sex offenders, Level 3, and those on probation or parole are restricted from living within 1,000 feet of a school.

Judge Eugene Pigott wrote in his decision, “Local law 4 and similar laws are easily passed and, understandably, receive local support, but as the State has acknowledged, communities in recent years have taken to shifting the burden of sex offender housing to neighboring communities, thereby frustrating the State’s policy that each community bear the burden.”

Dozens of communities across the state have similar laws on the books.

"Often times when one municipality does it, everybody tends to follow suit at that time," said Oneida County Executive, Anthony Picente.

A law in Oneida County was put into effect in 2007 and restricts all sex offenders from living within 1,500 feet of schools, parks, churches and daycares.

Picente said, "No one really sought to overstep, we just thought a further distance away from the state requirement was more sufficient for the particular area and that's what we did here in Oneida County."

In the town of Cicero, their restrictions were even more severe. Their law states that Level 2 and Level 3 sex offenders can not live within one mile of a school and 1,500 feet from a park.

"This local law was enacted as a result of what the community wanted and I think that's what we have here is what the community residents want," said Joseph Snell, Cicero Police Chief.

But this ruling could mean that all those local laws must be dissolved. Local governments are contacting their attorneys to understand their options.

Snell said, "I don't think there's much we can do to be honest with you. If the courts have said that the restrictions established by the state of New York are what we have to live by. Those are the ones we're going to have to live by."

According to the New York Civil Liberties Union about 109 cities, towns and villages as well as 21 counties statewide currently have sex offender restriction local laws. ..Source.. by Cara Thomas

Case is: People v Diack

In 2006, Nassau County enacted Local Law No. 4-2006 (Local Law 4), which, as relevant here, prohibits registered sex offenders from residing within 1,000 feet of a school. In recent years, dozens of municipalities in this State have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, daycare centers, parks, youth centers and other areas where children are likely to congregate.1 That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders. Local governments have, understandably, relied on their police power in furthering that interest.

But a local government's police power is not absolute.

... ... ...

As such, the unmistakable intent of the State to preempt the field prohibits their enactment.

Accordingly, the order of the Appellate Term should be reversed and the information dismissed.

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