By Robert Gavin
Updated 10:14 pm, Tuesday, February 17, 2015
Albany
The state’s highest court ruled on Tuesday that state law restricting the residency of registered sex offenders supersedes local and county laws.
The Court of Appeals struck down the law in Nassau County. At least 117 other municipalities across New York — including Albany, Rensselaer and Schenectady counties — had passed similar laws designed keep offenders certain distances from schools, parks, playgrounds, day care centers and other places where children are likely to be.
The court’s 5-0 decision was a victory for Albany attorney Kathy Manley, who made her case on behalf of Michael Diack, a Level 1, or lowest-risk, sex offender who was charged with a violating a 2006 residency restriction law in Nassau County when he did not relocate from within 1,000 feet of a school in 2010.
“I’m glad that the Court of Appeals has now put a stop to the proliferation of local sex offender residence laws, recognizing that the state has pre-empted this area,” Manley said. “These laws were very counterproductive, driving registered sex offenders away from their families and out of their communities. This leads to greater recidivism and actually makes the public less safe. The state realized this and the court has now acted to void all these local laws.”
Diack had served 22 months behind bars for possessing an obscene sexual performance of a child. A Nassau County judge dismissed the residency charge, finding that county law “improperly places local interests above the interests of a wider community.”
An appellate court reversed that decision, saying that the state imposed restrictions on Level 3, or highest-risk, sex offenders but not on Level 1 offenders like Diack.
The Court of Appeals disagreed.
Albany County’s sex-offender residency law was struck down in 2009. Acting State Supreme Court Justice Roger D. McDonough ruled that it was pre-empted by state statute. The ruling came days after a decision by Acting State Supreme Court Justice Henry Zwack in Rennselaer County against that county’s law on the same basis. In 2010, Supreme Court Justice Barry Kramer ruled against Schenectady County’s law. The decisions were not appealed.
On Tuesday, Schenectady County District Attorney Robert Carney said, “I know some residents in nearby rural Duanesburg complained that the rules were so strict regarding sex offenders living in cities, they may be forced into their rural neighborhoods,” he said.
The high court decision, written by Associate Judge Eugene Pigott, was supported by Chief Judge Jonathan Lippman and Associate Judges Susan Read, Jenny Rivera and Sheila Abdus-Salaam.
Five judges heard the case because of the retirement of Associate Judge Robert Smith and the departure of Associate Judge Victoria Graffeo. They have since been replaced by Associate Judges Leslie Stein and Eugene Fahey.
The decision said that the state has passed several laws since enacting the Sex Offender Registration Act in 1996, which created a sex offender registry placing offenders in low risk (Level 1), moderate risk (Level 2) and high-risk (Level 3) tiers.
The state passed the Sexual Assault Reform Act in 2000 — which prohibits sex offenders on probation, conditional release, post-release supervision or parole from entering school grounds or other facilities where children receive care — and the Sex Offender Management and Treatment Act in 2007.
“This top-down approach, with the state dictating the relevant factors that local officials are required to consider when placing such offenders in housing, plainly establishes that sex offender registry restrictions are within the exclusive bailiwick of the state and accentuates the state’s intent to occupy the field,” Pigott wrote.
An attorney for Nassau County, Kenneth L. Gartner, argued that such laws were piecemeal and did not represent the type of “comprehensive and detailed regulatory scheme” to warrant preemption.
The Court of Appeals was unmoved.
“It is clear from the state’s continuing regulation with respect to identification and monitoring of registered sex offenders that its ‘purpose and design’ is to pre-empt the subject of sex offender residency restriction legislation and to occupy the entire field so as to prohibit local governments from doing so,” Pigott wrote.
In making her argument to the court on Jan. 5, Manley listed problems with Schenectady County’s now-defunct law.
“It pushed people into certain corners of the county, including, I believe, the village of Scotia, and then Scotia went ahead and passed a harsher law to push people back out of there,” Manley told the court.
“And so these laws are used — without any evidence that they protect anybody — they’re used to push people and banish people from whole communities and you get this kind of ‘not in my backyard’ thing where they push people into another community, and then that community wants to pass a harsher law. So it’s just a big problem.”