People v Michael Diack

2-17-2015 New York:

People v Michael Diack

Kathy Manley, for appellant. Kenneth L. Gartner, for respondent. New York Civil Liberties Union, amicus curiae.

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. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. We hold that the State's comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4.

I.

In 2001, defendant, a Nassau County resident, was convicted of the crime of possessing an obscene sexual performance by a child (Penal Law § 263.11). He served 22 months in prison and, upon his release from custody, was classified a level one sex offender under the Sex Offender Registration Act (Correction Law art 6–C, § 168 et seq.). Defendant was discharged from parole on August 19, 2004. In July 2008, defendant reported his change of address to the New York State Division of Criminal Justice Services. Upon receiving this information, the Nassau County Police Department determined that defendant had moved to an apartment located within 500 feet of two schools.

Defendant was charged by information with a violation of Nassau County Local Law 4, which is codified in Nassau County Administrative Code § 8–130.6. That provision states, in relevant part, that “[i]t shall be unlawful for any registered sex offender to establish a residence or domicile where the property line of such residence or domicile lies within: (1) one thousand feet of the property line of a school; or (2) five hundred feet of the property line of a park ․” (Nassau County Administrative Code § 8–130.6[a][1], [2] ). The code defines a “registered sex offender” as “a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register with the New York state division of criminal justice services, or other agency having jurisdiction,” pursuant to the Sex Offender Registration Act, regardless of whether the sex offender has actually registered (id . at § 8–230.2).

Defendant moved to dismiss the information on the ground that Local Law 4 and section 8–130.6 are preempted by state law. The District Court of Nassau County granted the motion and dismissed the charge on the ground that Local Law 4 is preempted by New York's “comprehensive statutory scheme for sex offenders.” The Appellate Term reversed and reinstated the information, holding that it could not discern any express or implied intention by the Legislature through the enactment of the Sex Offender Registration Act (and other state laws) to occupy the entire field so as to prohibit the enactment of local laws imposing “residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or ․ seeking public assistance” (41 Misc.3d 36, 39 [App Term, 2d Dept, 9th and 10th Jud Dists 2013] ). A Judge of this Court granted defendant leave to appeal. ..Continued..

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Courts: New York State Law Trumps Stricter Local Laws in Residency Requirements for Sex Offenders

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Doe v. Annucci

6-18-15 New York:

Doe v. Annucci
No. 14 Civ. 2953 (PAE).

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim.

For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

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Rosin v Monken

3-17-2010 New York, Illinois:

Rosin v Monken

After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York.

He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants' motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject.

Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm.

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The purpose of the Full Faith and Credit Clause "was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)). By virtue of its "exacting" operation with respect to judgments, the Full Faith and Credit Clause results in "the judgment of the rendering State [gaining] nationwide force." Id. at 233, 118 S.Ct. 657. The primary operational effect of the Clause's application is "for claim and issue preclusion (res judicata) purposes." Id. at 233, 118 S.Ct. 657.

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

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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.

Troubling Interpretation of Sex Offender Registration Statute

11-7-2014 New York:

by Lorca Morello, New York Law Journal

In Eugene Ionesco's absurdist play "The Bald Soprano" a character talks about a husband and wife named Bobby and Bobby Watson whom no one could tell apart because they had the same name. In People v. Gillotti, the Court of Appeals has applied similar logic to hold that "victim" under the Sex Offender Registration Act (SORA) is identical to "victim" in tort cases where persons depicted in child pornography can seek damages from mere viewers.1 Gillotti accordingly holds that anyone convicted of possessing multiple images of child pornography has multiple "victims" and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children.

The majority sees no absurdity in this. Rather, it asserts that any other result would violate the "plain language" of SORA. But plain language interpretation does not mean that just because two things have the same name they cannot be told apart.

Gillotti also conflates two meanings of the word "presumptive." In everyday speech, presumptive means less than definitive, as in "Dr. Livingston, I presume." As a legal term, a presumption allocates the burden of proof, as in "the presumption of innocence." In SORA hearings, the Board of Examiners of Sex Offenders (BESO) offers what its guidelines call a "presumptively correct" recommendation about the defendant's risk level. The guidelines use the word "presumptively" in the everyday sense of "not definitive."

Gillotti, however, interprets "presumptively correct" as a legal presumption that shifts the burden of proof to the defendant. This is inconsistent with the statute and the court's own precedents. Under SORA it is the state's burden to prove by clear and convincing evidence that the defendant deserves the deprivation of liberty interests entailed in being classified as a high or moderate risk.2 However strong the state's evidence, the burden of proof never shifts.

The effect of Gillotti will be to inflate the number of persons permanently stigmatized as dangerous "sex offenders" who probably present no more risk to public safety than any other ex-offender.

Wallace v. State

9-26-2014 New York:

Wallace -v- State

In this case ("Wallace"),1 nine individuals ("Plaintiffs") claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 ("Am. Compl.") ¶¶ 1-3.)

Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. (Id. ¶¶ 45-46.)

Defendants—the State of New York (the "State")2; the County of Suffolk (the "County") and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services3 (the "County DSS") (collectively, the "County Defendants")4; Mark Epley, in his official capacity as Mayor on behalf of the Town of Southampton5 (the "Town")6; and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. ("CHI")—move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68-70; 79.)

For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.

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See also: Judge Rejects Sex Offenders' Challenge to Residency Laws....NY Law Journal

People v Parilla

5-30-2013 New York:

People v Parilla
2013 NY Slip Op 03931

Defendant appeals from the order of the Supreme Court, Bronx County (Steven Lloyd Barrett, J.), entered on or about April 1, 2010, which adjudicated him a level three sexually violent offender pursuant to the Sex Offender Registration Act.

ANDRIAS, J.

In this appeal, we consider whether amendments made to the Sex Offender Registration Act (SORA) (Correction Law art 6-C) since 1996, that, among other things, impose more stringent registration and notice requirements for convicted sex offenders, have rendered the act a punitive statute, so that its retroactive application to defendant violates the Ex Post Facto Clause or the state and federal constitutional prohibition against double jeopardy. For the reasons that follow, we find that SORA, as amended, does not constitute an impermissible ex post facto law or subject defendant to double jeopardy and that the record supports defendant's adjudication as a level three sexually violent offender.

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NY sex offender law not punitive: appeals court

Judge strikes down Warren County sex offender residence restrictions

4-26-2013 New York:

A state Supreme Court judge has tossed Warren County’s sex offender law, concluding that the restrictions on where convicted sex offenders can live and work ran counter to state law.

The county Board of Supervisors in 2006 passed the local law that banned sex offenders from living within 1,000 feet of playgrounds, schools and public parks for their entire lives.

State law bans sex offenders from living in proximity of places frequented by children only until they’ve completed parole.

Warren County state Supreme Court Justice Robert Muller ruled Wednesday in favor of an unidentified Queensbury man who was told last year he couldn’t move in with his mother in Queensbury.

“While they may be well-intended, statistics show they don’t make anyone safer and they further stigmatize former offenders,” said Kathy Manley, “John Doe’s” Albany-based attorney.

Manley’s client was convicted in 2010 of sexual acts with a minor who was under 16, and he served two years in prison, according to court documents.

Local laws like Warren County’s were adopted over the past decade in places throughout the state and have since repeatedly been struck down when challenged in court, because they are superseded by state law.

Warren County opted to not contest the lawsuit and send it to a lengthy, and potentially costly, court battle because similar local laws had fared poorly in state court.

“The decision is consistent with many court decisions from other counties,” said County Attorney Martin Auffredou. “The decision sort of speaks for itself.”

The laws keep sex offenders from finding work and medical and psychological treatment, essentially subjugating them to poverty and a lack of treatment, Manley said.

Auffredou suspended enforcement of the law in February after “John Doe’s” lawsuit was filed.

The county Board of Supervisors has taken no steps to override the local sex offender law, instead allowing the Supreme Court ruling to uphold or strike down the proximity ban. ..Source. by JON ALEXANDER

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:

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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.

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.

Woe v Spitzer

8-4-2008 New York:

Woe v Spitzer
571 F.Supp.2d 382 (2008)

The court held:

This is a civil rights action in which Plaintiff, referred to herein only by the pseudonym, "Alan Woe" ("Plaintiff") alleges a deprivation of his right to due process of law as guaranteed by the United States Constitution. Plaintiff seeks to have this court hold a provision of the New York State Sex Offender Registration Act of 1995, codified at Section 168-h(1) of the New York State Correction Law ("SORA"), unconstitutional.1 Presently before the court is Defendants' motion, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the complaint. For the reasons set forth below, the motion is granted and the complaint is dismissed.

The relevant facts supporting Plaintiff's claim are not in dispute and are set forth below.

Plaintiff is a designated sex offender pursuant to the terms of SORA. At the time of his designation, Plaintiff was required to register as a sex offender with law enforcement authorities for a period often years. That period began as of the date of enactment of SORA, January 21, 1996. Three days before the ten year period was set to expire, SORA was amended to provide for a twenty year period of registration for sex offenders classified within Plaintiff's category of risk. Thus, instead of Plaintiffs registration period expiring on January 21, 2006, it is now set to expire on January 21, 2016.

Plaintiff does not challenge the Constitutionality of SORA as a whole. Instead, this action is limited to the claim that the statutory amendment extending the registration period from ten to twenty years has deprived Plaintiff of his right to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiff argues that the newly amended statutory scheme deprives him of the procedural right to petition for relief from the twenty year registration requirement.

Terrance -v- City of Geneva

8-31-2011 New York:

Terrance -v- City of Geneva
799 F.Supp.2d 250 (2011)

Plaintiff Danny Terrance (“Terrance”) has filed a complaint against Defendant City of Geneva, New York (“the City”), requesting a declaration that the City of Geneva Municipal Code, Part II, General Legislation, Chapter 285 (“Chapter 285") is unconstitutional. Terrance also seeks an injunction against the City’s enforcement of Chapter 285. The City has filed a pre-answer motion to dismiss under Fed. R. Civ. P. 12(b)(6).

Conclusion: The Court agrees with the cogent and thorough opinions of the New York State courts discussed above that the State's legislative pronouncements to date establish that the regulation and management of sex offenders (including sex offender residency restrictions) is the exclusive province of the State. Thus, for the reasons discussed above, the Chapter 285 (City of Geneva Municipal Code, Part II, General Legislation, Chapter 285) is preempted by New York State Law and will not be given effect.

Accordingly, judgment in favor of Plaintiff is granted to the extent that Chapter 285 is declared invalid and will not be given effect. Because of this disposition, the Court need not rule on Plaintiff’s Federal constitutional claims. Defendant’s motion to dismiss is hereby dismissed as moot. SO ORDERED. Article: Geneva can't pre-empt state SORA residency laws, says U.S. District