State Senate Responds Swiftly to the Striking Down of a Local Law Intended to Protect Children from Sex Offenders

A Rockland County law barring where registered sex offenders can reside was struck down late last month by New York State Supreme Court Justice William A. Kelly because it conflicted with existing state regulations. In an immediate and strong response last week to eliminate the preemption, Senate majority leader Malcolm A. Smith, D-Queens, joined Senator Craig Johnson, D-Port Washington, at a Mineola news conference to announce a measure that would prohibit registered sex offenders from living within 1,000 feet of a school, park or day-care center, the precise residence requirement contained in the local law that was stuck down. The bill is in committee in the State Senate.

In People v. Yoel Oberlander, 02-354, decided 01/22/09, the defendant, following a Violation of Probation hearing, moved for an Order dismissing the violation. 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.’

When it was enacted in February 2007, the Rockland County Legislature, cited ‘the recidivism rate among convicted sex offenders following their release from confinement.’ Months after the statute was enacted, then 26-year-old Mr. Oberlander was arrested for living within 1,000 feet of a private elementary school and public park. His case reportedly was one of the first to be brought under the local law.

The Court had previously held in the case 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, the Court held that the statute was facially neutral and did not unduly burden the defendant’s practice of his religion.

In the recent motion, Mr. Oberlander claimed, for the first time, that Local Law No. 1 of 2007 was preempted by New York State Law. The New York State Constitution allows municipalities broad police power relating to the welfare of its citizens. However, that local police power may not be exercised in an area in which it is preempted by State law. The Court concluded that Local Law No. 1 of 2007 impermissibly conflicts with the State enactments in that it
(1) prohibits all housing described in the statute without regard to the approval of the probation department and
(2) prohibits the offenders presence within 1000 feet of a child safety zone whereas the state law merely prohibits entry onto such premises.

The Court additionally found that the mandatory criteria to be applied under the new statutory scheme contains no such arbitrary bright line rule concerning the location of an offender’s home, whereas the new regulations requires consideration of the ‘proximity of entities with vulnerable populations’ as but one of the criteria.

The Judge believed that the defendant had tried to comply with the law, having submitted fifteen addresses for approval. 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.

Justice Kelly criticized not only Rockland County’s local law, but also criticized what he described as more than 80 sex offender residency restrictions laws that have recently been enacted in New York. He describes local legislatures scrambling 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. 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.

Thus if Mr. Justice Kelly’s decision is affirmed or otherwise becomes precedent in the State, the validity of all of these local residency restriction laws would be doubtful, to say the least. Given the paramount concerns in today’s world concerning sex offenders and the safety of children, it would be completely unacceptable, in the eyes of State Senators Smith and Johnson, among many others to be sure, to in effect handcuff local legislatures from protecting their citizens. This explains their swift reaction to the court decision.

Senator Johnson’s legislation would prohibit a registered sex offender from living within 1,000 feet of a school building, park, or day care center, and establish the states Penal Law mandate that the first offense of this law be a Class A misdemeanor, allowing for the presiding judge to mandate up to one year imprisonment. Subsequent offenses will be a Class D felony, allowing for up to seven years of imprisonment. In its analysis of the preemption issue, the Court noted that New York has one of the strictest sex offender residency laws in the nation. New York has a statewide sex offender residency restriction.

In 2005, the Legislature barred all under supervision sex offenders whose victims were minors, and all level 3 offenders, from knowingly ‘entering’ (and, for practical purposes, residing) within 1,000 feet of the ‘real property boundary line of a public or private elementary [school], parochial, intermediate, junior high, vocational or high school.’

The restriction is enforceable as a condition of parole or probation. The Court contrasted the state laws balance, by excluding certain low risk offenders and including geographic and durational limits, between the perceived need for buffer zones and the long-term goal of reintegrating offenders into the community with local residency laws that permanently exclude offenders from communities, setting off a chain-reaction of fear-driven and increasingly restrictive laws. In striking down the local law, the Court found that the State has a ‘comprehensive and detailed regulatory scheme’ in the area from which the State’s intent to preempt the field can clearly be inferred.

Megan’s Law and the state residency restriction are powerful indications of the New York Legislature’s intention to ‘occupy the field’ of community management of sex offenders. New York has promulgated a detailed legislative scheme regarding the registration of sex offenders. Correction Law 168 et. sec. New York’s Sex Offender Registration Act [hereinafter ‘SORA’] was enacted to combat ‘the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government.’

Section 1 of the Laws of 2008 further states that ‘the legislature has enacted a series of laws to monitor sex offenders and protect the public from victimization, specifically, a system to: register sex offenders; provide law enforcement agencies, entities with vulnerable populations, and the general public access to information contained in the state’s sex offender registry; prohibit high risk sex offenders from entering upon school grounds; and civilly confine dangerous sex offenders who would likely re-offend if released.

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