MICHAEL D. STALLMAN, J.
In this CPLR article 78 proceeding, petitioner Foster Williams seeks a judgment prohibiting respondent New York State Department of Corrections and Community Supervision, sued here as Department of Corrections and Community Supervision, from enforcing Executive Law § 259-c (14), which was enacted pursuant to the Sexual Assault Reform Act (SARA) (L 2000, ch 1) and subsequently amended by chapter 544 of the Laws of 2005, against petitioner, and declaring that the law is unconstitutional, insofar as the law prevents him from traveling or living within 1,000 feet of a school.
On January 12, 1996, after a jury trial, petitioner was convicted of one count of rape in the first degree (Penal Law
Penal Law § 220.00 (14) defines "school grounds" as follows:
In 2000, the New York Legislature enacted the Sexual Assault Reform Act, which took effect on February 1, 2001 (L 2000, ch 1). As part of SARA, a new subdivision (14) was added to section 259-c of the Executive Law
In 2005, the legislature amended SARA by passing an act, entitled "SEX OFFENSES — SCHOOL BUILDINGS AND GROUNDS — CONDITIONAL RELEASE" (L 2005, ch 544). As part of the 2005 act, Executive Law § 259-c (14) was amended to read:
The 2005 act went into effect on September 1, 2005.
On November 12, 2012, respondent's State Board of Parole issued a decision releasing petitioner to parole supervision (verified answer, exhibit A). On December 19, 2012, petitioner was adjudicated a level two sex offender by the Supreme Court, New York County (verified petition ¶ 4, exhibit B). It is undisputed that, on December 20, 2012, petitioner was released to parole supervision, and is scheduled to remain on parole supervision until November 18, 2016 (id. ¶ 5, exhibit C; verified answer ¶ 4).
Prior to his release, petitioner agreed to a number of conditions imposed by the Board of Parole (verified answer, exhibit B). Petitioner signed a form which, in relevant part, provided,
As a mandatory condition of release to parole supervision, petitioner agreed to "not knowingly enter into or upon any school grounds as that term is defined in Penal Law § 220 (14)" (verified petition, exhibit A).
As part of special conditions of release to parole supervision, petitioner agreed that, until November 18, 2016, he "will not enter, remain, or be with[in] 1,000 feet of places where children congregate, such as ... parks, schools, day care, playgrounds... without the prior knowledge and permission of my Parole Officer" (verified answer, exhibit C [special conditions of release to parole supervision] ¶ 13; see also verified petition, exhibits D, E).
Prior to his incarceration, petitioner allegedly lived in New York City for over 25 years, and in Manhattan for over 20 years. Upon his release, petitioner was directed to move to the Bellevue Men's Shelter at 400 East 30th Street, New York, New York, and he currently resides there.
On November 16, 2012, petitioner's attorneys wrote to the Board of Parole, requesting that the 1,000-foot "residency restriction" be removed from petitioner's parole conditions, on the ground that, among other things, the imposition of this restriction violates the Ex Post Facto Clause of the United States Constitution (art I, § 10; verified petition, exhibit F).
Petitioner states that: (1) he is now 64 years old (verified petition ¶ 2); (2) since January 2013, he has been looking for an apartment that would comply with the condition (id. ¶ 23); (3) based on his savings and the anticipated public assistance, he is "willing to spend about $600 per month on rent" (id.); (4) because of his age and medical conditions,
Petitioner provides an affidavit of Buras, who states that: (1) she has worked with petitioner to help him secure housing; (2) "[i]t is very difficult to find housing that complies with [petitioner's] residency restriction"; "it seems that almost all of the housing that is available is within 1,000 feet of a school or day care" (id., exhibit H [Apr. 11, 2013 Buras aff] ¶ 6); (3) if not for the residency restriction, petitioner "would be able to find
Petitioner challenges Executive Law § 259-c (14), as amended by the 2005 act, to the extent that it prohibits him from living or traveling within 1,000 feet of a school, on the grounds that it violates: (1) the United States Constitution's ban on ex post facto lawmaking (US Const, art I, § 10), as applied to him; (2) his federal and state constitutional rights to substantive due process (US Const, 14th Amend, § 1; NY Const, art I, § 6); and (3) his constitutional right to travel.
The first issue is whether this proceeding may be brought as a CPLR article 78 proceeding.
"[A]n article 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or regulation has been applied in an unconstitutional manner" (Matter of Kovarsky v Housing & Dev. Admin. of City of N.Y., 31 N.Y.2d 184, 191 [1972]; see also Dimiero v Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 A.D.2d 875, 877 [3d Dept 1993]). However, "an article 78 proceeding may not be used to test the constitutionality of a legislative enactment, as distinct from the constitutionality of its application" (Board of Educ. of Belmont Cent. School Dist. v Gootnick, 49 N.Y.2d 683, 687 [1980]). An action that challenges the constitutionality of a legislative act should be converted to a declaratory judgment action (see id.).
Given that petitioner here challenges both the constitutionality of a legislative act and its allegedly unconstitutional application, this proceeding, pursuant to CPLR 103 (c), is converted to a combined declaratory judgment action and CPLR article 78 proceeding (see e.g. Press v County of Monroe, 50 N.Y.2d 695, 702 [1980]; see also Matter of Capital Fin. Corp. v Commissioner of Taxation & Fin., 218 A.D.2d 230, 232 [3d Dept 1996]).
The United States Constitution, in relevant part, provides: "No State shall ... pass any ... ex post facto Law" (US Const, art I, § 10 [1]). "One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission" (Garner v Jones, 529 U.S. 244, 249-250 [2000]; see also Collins v Youngblood, 497 U.S. 37, 42 [1990]). "[W]here the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause" (Kellogg v Travis, 100 N.Y.2d 407, 410 [2003]).
"[T]he constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them" (Collins, 497 US at 41). "Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of" the Ex Post Facto Clause (Garner, 529 US at 250).
Pursuant to SARA, the Board of Parole is obligated to require that petitioner, as a mandatory condition of his release to parole supervision, "refrain from knowingly entering into or upon any school grounds" (L 2000, ch 1, § 8; see also Executive Law
The New York Legislature explained that one of the reasons behind SARA was "to amend the penal law, the executive law and the correction law, in relation to prohibiting certain sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where children are cared for" (L 2000, ch 1, preamble). "The proposed legislation recognizes the particularly heinous nature of sex crimes committed against children and takes important steps to protect children from sexual predators" (Mem of NY Attorney General, Aug. 22,
With respect to the 2005 act, the legislature stated in the preamble: "AN ACT to amend the penal law, the executive law and the correction law, in relation to prohibiting certain sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where children are cared for" (L 2005, ch 544).
The Sponsor's Memorandum in the Senate, Bill S479-A, in relevant part provides:
The Sponsor's Memorandum in the Assembly, Bill A8894, in relevant part provides:
Following the passage of legislation, assemblyman Harvey Weisenberg, the bill's sponsor, wrote, in relevant part, to Counsel to the Governor:
Counsel and Deputy Commissioner for Legal Affairs of the State Education Department wrote, in relevant part, to Counsel to the Governor:
Accordingly, the legislature sought to protect children from harm and not to increase punishment against sex offenders. Although the legislature uses the language of prohibiting sex offenders from entering school grounds, the underlying intention is to protect the health and safety of children (see e.g. Smith v Doe, 538 US at 93-94 ["where a legislative restriction is an incident of the State's power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the
In Matter of Berlin v Evans (31 Misc.3d 919, 927 [Sup Ct, NY County 2011, Singh, J.]), the court concluded that one of the legislature's intentions behind the 2005 act was "to increase punishment against convicted sex offenders." The court in Berlin relied on the fact that "the definition of `school grounds' is contained in the Penal Law" and that "Executive Law § 259-c (14) deals exclusively with parole," "a form of punishment" (id.). This court disagrees. "The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one" (Smith, 538 US at 94). Hence, the intention of the legislature "was to create a civil, nonpunitive regime" (id. at 96).
Under the second prong of the intents-effects test, courts "will reject the legislature's manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil" (Kansas v Hendricks, 521 US at 361 [internal quotation marks, citation and brackets omitted]; see also People v Parilla, 109 AD3d at 24). The following factors are considered in determining whether a statute is punitive in effect:
These factors are "useful guideposts" (Smith v Doe, 538 US at 97 [internal quotation marks and citation omitted]). They "may often point in differing directions" (Kennedy, 372 US at 169), and "no one factor is determinative" (People v Parilla, 109 AD3d at 24).
The effects of the Executive Law § 259-c (14), as amended by the 2005 act, need to be analyzed in light of petitioner's status as a parolee. "Because there is no federal or state constitutional right to be released to parole supervision before serving a full sentence, the state has discretion to place restrictions on parole release" (Matter of Williams v New York State Div. of Parole, 71 A.D.3d 524, 525 [1st Dept 2010]; see also People v Dyla, 142 A.D.2d 423, 439 [2d Dept 1988] ["(p)arolees ... are allowed to remain outside the penal institution only on stated conditions"]). "A paroled ... person shall, while on parole ..., be in the local custody of the Division of Parole until expiration of the maximum term or period of sentence" (9 NYCRR 8003.1 [a]) and "shall continue service of his or her sentence or sentences while on parole, in accordance with and subject to the provisions of the executive law and the correction law" (Penal Law § 70.40 [a]).
"The conditions of [a parolee's] release, including those governing post-release supervision, shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law" (Penal Law § 70.40 [b]; see also Executive Law § 259-i [2] [a] [i]). "The releasee is expected to comply faithfully with all conditions specified in writing at the time of his release" (9 NYCRR 8003.1 [b]; verified answer, exhibits A-C [detailing various conditions of petitioner's release on parole]).
Petitioner argues that Executive Law § 259-c (14), as amended by the 2005 act, prevents him from living in Manhattan and a large portion of the outer boroughs (see e.g. Apr. 11, 2013 mem of law in support at 10). Petitioner claims that he is essentially banished from New York County, and that banishment is a traditional form of punishment (id.).
In support, petitioner provides a map of New York City, that was created for the Legal Aid Society, which marks locations that fall within the 1,000-foot radius of a school (verified petition, exhibits H, J). The map, however, is not fully reproduced (see id.). It shows only the borough of Manhattan in its entirety, large swaths of the Bronx and Queens, a small portion of Brooklyn, and does not show Staten Island at all (see id.). According to the map, most of Manhattan is within the 1,000-foot radius of a school, except certain areas of what appear to be Roosevelt Island, Chelsea, Stuyvesant Town, and the Financial
However, according to the map, vast areas of Queens, including what appear to be areas within Long Island City, Hunters Point, Sunnyside, Maspeth, Middle Village, Elmhurst, and Corona neighborhoods, are not within the 1,000-foot radius of a school (see id.). In Brooklyn, certain areas in what appears to be the Greenpoint neighborhood are not within the 1,000-foot radius either. Accordingly, petitioner's argument that he is banished from most of New York City is contradicted by the map that he himself provides (see id.).
Additionally, the restriction at issue is not similar to historical punishment of banishment. Banishment has been defined as: (1) "a punishment inflicted upon criminals, by compelling them to quit a city, place, or country, for a specific period of time, or for life"; (2) "exile"; and (3) "[a] punishment by forced exile, either for years or for life; inflicted principally upon political offenders" (United States v Ju Toy, 198 U.S. 253, 269-270 [1905, Brewer, J., dissenting] [internal quotation marks omitted]; see also People v Parilla, 109 AD3d at 26 ["banishment involved state action in removing the offender from a locality"]). The statute does not require that petitioner abandon any particular geographic area. Neither has respondent removed petitioner from Manhattan or any other borough of New York City. The amendment merely places a temporary restriction, which expires at the completion of petitioner's sentence, on how close he may live, in this case, to a school. It cannot be equated with a forced exile from one's home or country (Ju Toy, 198 US at 269-270).
Aside from the condition, petitioner is subject to numerous other "geographic" conditions, which he does not challenge. For example, he may not, without prior knowledge and permission of his parole officer, "leave the five (5) boroughs of New York City" (verified answer, exhibit C [special conditions of release to parole supervision] ¶ 19). Neither may petitioner "enter, remain [in] or be within:" "any business where exotic or sexually explicit sexual activities are taking place," "the location[] of [his] sexual crime[] at anytime," and "any location that provides alcoholic beverages for public consumption" (id. ¶¶ 7, 18, 20; see also Matter of M.G. v Travis, 236 A.D.2d 163, 169 [1st Dept 1997] [imposition of similar conditions on the respondent parolee was
"Here, we inquire how the effects of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive" (Smith v Doe, 538 US at 99-100).
First, the court notes that, as a result of the 2005 act, petitioner did not have to serve additional time in prison, which is one of the primary concerns in analyzing a change in law affecting inmates eligible for parole (see e.g. Garner, 529 US at 255-256; see also Smith, 538 US at 99-100 ["(t)he Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint"]).
The court recognizes that the expanded definition of "school grounds," as applied by respondent to petitioner's case, may cause difficulty in obtaining housing in some areas of New York City.
The court notes that, by comparison, pursuant to the New York State Sex Offender Registration Act (SORA) (Correction Law art 6-C) and its amendments, sex offenders are subject to various intrusive regulations,
In Berlin, prior to his imprisonment, the petitioner had resided in the same apartment in Manhattan for more than 40 years, and, while in prison, he "continued paying rent for his apartment, and he planned to return to his apartment as soon as he was released from prison" (Berlin, 31 Misc 3d at 920). New York State Division of Parole denied the petitioner's request to return to his apartment while on parole, because the apartment was within 1,000 feet of a school (id. at 921-922). Similarly, in State v Pollard (908 N.E.2d 1145, 1150 [Ind 2009]), as a result of a new statute, a sex offender was not allowed to live in his own house, in which he lived for approximately 20 years, because of its proximity to a school.
Unlike the petitioner in Berlin or the respondent in Pollard, petitioner here has not alleged that he owns or has been renting a particular apartment in Manhattan, to which he would like to return, but is prevented by respondent from returning there because of the condition. Petitioner here prefers to live in Manhattan, but has not articulated a particular property interest located in Manhattan that he would have to abandon as a result of the condition. Hence, the statute does not impose an affirmative disability or restraint to the extent that it would render its effects punitive.
As to the existence of a nonpunitive purpose, the 1,000-foot restriction is rationally connected to a legitimate purpose of protecting children (see e.g. Smith, 538 US at 103-105).
Petitioner contends that the statute is excessive with respect to this nonpunitive purpose, because it does not require or permit any individual assessment of an offender's dangerousness. "The question is whether the regulatory means chosen
The 2005 act expanded the definition of school grounds to either school grounds themselves or a 1,000-foot buffer zone around a school (see L 2005, ch 544, § 2; see also Executive Law § 259-c [14]; Penal Law § 220.00 [14]). Although it expanded the spatial/territorial definition, the statute remains limited only to certain sex offenders already serving a sentence who are paroled or conditionally released, and whose victim was under 18 years old.
First, Executive Law § 259-c (14), when read as a whole, differs significantly from a statute subject to analysis in Commonwealth v Baker (295 S.W.3d 437, 444-445 [Ky 2009], cert denied 559 U.S. 992 [2010]), on which petitioner relies and which was discussed in Berlin (31 Misc 3d at 928-929). In Baker, all registered sex offenders, not only those on probation or conditional release, were prohibited from residing within 1,000 feet of a school (id. at 440-441). The statute here applies only to certain sex offenders who were "released on parole or conditionally released" (see Executive Law § 259-c [14]; Penal Law § 220.00 [14]).
Moreover, given the nature of petitioner's crime, he might be reasonably viewed as a potential threat to children (cf. Baker, 295 SW3d at 446 ["(t)he record before us does not reveal whether or not Respondent might be a threat to children and to public safety"]). The statute, by essentially creating a buffer around schools, rationally seeks to lessen petitioner's contact with children.
Second, the United States Supreme Court held that "[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause" (Smith, 538 US at 104). Only where a restraint on an individual is of great magnitude, such as involuntary confinement, is individual assessment appropriate (see id. [discussing Kansas v Hendricks (521 US at 357-358, 364), where the United States Supreme Court dealt with a state statute requiring involuntary confinement of offenders who had committed a sexually violent offense and suffered from a mental abnormality or personality disorder, upon completion of their prison term]). Here, the statute imposes much milder restriction on petitioner. Accordingly, the regulatory scheme is not excessive with respect to the nonpunitive purpose.
The remaining factors are: whether the regulatory scheme comes into play only on a finding of scienter; whether its operation will promote the traditional aims of punishment — retribution and deterrence; and whether the behavior to which it applies is already a crime (see Mendoza-Martinez, 372 US at 168).
The statute here does not require a finding of scienter in order to impose the restriction. The statute is not retributive. It does not punish a sex offender's past conduct, but seeks to defend children from the risk of future recidivism (see e.g. Parilla, 109 AD3d at 23). "The regulatory scheme applies only to past conduct, which was, and is, a crime," and the imposition of the condition pursuant to Executive Law § 259-c (14) is "not predicated upon some present or repeated violation" (Smith, 538 US at 105).
Accordingly, the Executive Law § 259-c (14), as amended by the 2005 act, is not so punitive in its effect as to negate the legislature's intent, and its retroactive application does not violate the Ex Post Facto Clause.
Petitioner further argues that the statute deprives him of a liberty interest. "The Due Process Clause of the Fourteenth Amendment [of the United States Constitution] states: `nor shall any State deprive any person of life, liberty, or property, without due process of law'" (Collins v Harker Heights, 503 U.S. 115, 125 n 8 [1992]).
"The traditional test requires only that the classification be rationally related to a permissible goal. However, if a fundamental personal right is involved, a classification can be upheld only if it furthers a compelling state interest" (King v New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 [2d Cir 1971] [citational footnote omitted]; see also Reno v Flores, 507 U.S. 292, 301-302 [1993] [the infringement on a fundamental liberty interest must be "narrowly tailored to serve a compelling state interest" (citations omitted)]). "Substantive due process analysis must begin with a careful description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field" (Reno, 507 US at 301-302 [internal quotation marks, citations and brackets omitted]).
"Section 6 of article I of [the New York] Constitution mandates that `No person shall be deprived life, liberty or property
However, the parole statute does not create a liberty interest. (See Siao-Pao v Connolly, 564 F.Supp.2d 232 [SD NY 2008].)
Petitioner formulates the right at issue as the right to live where one chooses, but concedes that it is not fundamental, and that his posited liberty interest is subject to rational basis review (reply mem of law at 24). Moreover, petitioner and other parolees enjoy only conditional liberty, which is dependent on observance of conditions (see e.g. Griffin v Wisconsin, 483 U.S. 868, 874 [1987]; see also United States v Grimes, 225 F.3d 254, 258 [2d Cir 2000] ["parolees enjoy even less of the average citizen's absolute liberty than do probationers" (internal quotation marks omitted)]; People v Hale, 93 N.Y.2d 454, 459 [1999] [parole status "falls under a `special needs' category that may justify departures from the customary constitutional standards that apply in other settings"]).
Petitioner also argues that application of Executive Law § 259-c (14) to him interferes with his right to travel freely within the State of New York.
Accordingly, under the United States Constitution, the appropriate test for a parolee is whether the infringement, on petitioner's opportunity to live where he chooses and to travel, is rationally related to a permissible goal (see King v New Rochelle Mun. Hous. Auth., 442 F2d at 648). Under the New York Constitution, petitioner's "challenge is to be viewed as presenting two inquiries: in enacting [the 2005 act] was the Legislature acting in pursuit of permissible State objectives and, if so, were the means adopted in [the 2005 act] reasonably related to the accomplishment of those objectives?" (Montgomery v Daniels, 38 NY2d at 54.)
As previously discussed, in enacting the 2005 act, the legislature was acting in pursuit of protecting children from harm posed by paroled sex offenders, which is a permissible state objective.
Petitioner's underlying crime involved the rape of a minor. There is a concern about petitioner's "future chances of recidivism" with respect to children (Matter of Williams v New York State Div. of Parole, 71 AD3d at 526). By creating a 1,000-foot buffer around a school, the restriction seeks to protect children from harm by petitioner's "being at large" (see Griffin v Wisconsin, 483 US at 875). The restriction is temporary, ending upon completion of petitioner's term.
Moreover, the statute does not impose strict liability. Incidental contact with the 1,000-foot zone of exclusion, when walking
Given the nature of petitioner's crime and his status as a parolee, the temporary restriction against entering within 1,000 feet of a school is rationally and reasonably related to the permissible and legitimate state objective of protecting children. Accordingly, the statute does not violate petitioner's substantive due process rights.
For the foregoing reasons, it is hereby adjudged that the petition is denied and the proceeding is dismissed; and it is further adjudged and declared that Executive Law § 259-c (14), as amended by Laws of 2005 (ch 544, § 2), is not unconstitutional on its face or as applied to petitioner.
