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Local Law No. 8

An Albany Sex Crimes Lawyer said that, the defendant, was charged on May 6, 2008 with one count of residing within 1,000 feet of real property, in violation of Local Law No. 8 (2006) of the County of Albany, a misdemeanor. By notice of motion filed on August 29, 2008, the defendant through his attorney, moves for omnibus relief. The People have responded through the affirmation in opposition of filed on September 26, 2008. The matter now comes before the court for a decision.

An Albany Criminal Lawyer said that, the defendant seeks an order dismissing the accusatory instrument on the ground that Albany County Local Law No. 8 (2006) is preempted by New York State law. Before reaching the merits of the above argument, the court addresses the People’s sole response to the instant motion that “this Court has previously ruled on the constitutionality of this statute”. While, certainly, the above decision, among others, is entitled to respectful consideration, it is nonetheless well settled that a decision of a judge of coordinate jurisdiction is not binding precedent.

An Albany Sex Crime Lawyer said that, Local Law No. 8, which became effective on September 1, 2006, is entitled “A Local Law of the County of Albany, New York Establishing Residency Restrictions in the County of Albany For Sex Crime Offenders Who Have Committed Criminal Offenses Against Minors” and provides the following at section 3: “A sex crime offender as herein defined shall not reside within one thousand feet of a real property compromising a public or nonpublic elementary school or secondary school, or a child care facility.” Local Law No. 8 defines “sex offender” at section 2 (a) as “a person who has been convicted of a sexual offense against a minor and has received a level two or three designation as defined in Article 6-C of the New York State Correction Law.” Section 2 (b), in turn, defines a “child care facility” as “licensed and/or registered child day care centers, group family day care homes and family day care homes as defined by the New York State Social Services Law.” Lastly, section 2 (c) defines the term “residence” as “the place where a person sleeps, which may include more than one location, and may be mobile or transitory.”

The issue in this case is whether the Motion to Dismiss the Accusatory Instrument Preemption should be granted.

Albany County is not unique among localities in enacting residency restrictions for sex offenders. The rise of such local laws throughout New York State was recently noted by Supreme Court: “`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'”. No robbery was charged.

To Be Cont…

In fact, enactment of sex crime offender residency restrictions and challenges to such laws are occurring nationwide. While the defendant raises multiple constitutional challenges to Local Law No. 8, the court initially addresses whether this law is preempted by New York State law. The New York Constitution empowers municipalities to make local laws “not inconsistent with the provisions of this constitution or any general law”. However, “the preemption doctrine represents a fundamental limitation on home rule powers” and “local police power may not be exercised in an area in which it is preempted by State law”. “Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, local law regulating the same subject matter is considered inconsistent and will not be given effect”.
It is well settled that “preemption applies both in cases of express conflict between local and state law and in cases where the State has evidenced its intent to occupy the field”. Indeed, “it is enough that the Legislature has impliedly evinced its desire to occupy an entire field 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”. The State’s intent to occupy an entire field may additionally 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”. Applying these principles to the case at hand, this court agrees with the recent decision issued by the Supreme Court that the New York State Legislature has enacted a comprehensive and detailed regulatory scheme regarding the registration and regulation of sex offenders, preempting local legislation on this subject.

The Criminal Sex Offender Registration Act, as well as other state laws, demonstrates the Legislature’s intent to provide a comprehensive and evolving regulation over the lives of convicted sex offenders. The Legislature set forth its intent in the preamble to SORA: “The legislature finds that the danger of recidivism posed by sex crimes 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. The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal arraignment justice system to identify, investigate, apprehend and prosecute sex offenders.

“The system of registering sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.

To Be Cont….

“Persons found to have committed a criminal sex crime offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing offenders due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex crime offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm.

Therefore, this state’s policy, which will bring the state into compliance with the federal crime control act, is to assist local law enforcement agencies’ efforts to protect their communities by requiring sex offenders to register and to authorize the release of necessary and relevant information about certain sex crime offenders to the public as provided in this act.”

With the enactment of SORA, the Legislature expressed its intent to regulate the present and future conduct of sex offenders for the purpose of assisting law enforcement agencies in protecting vulnerable populations and the public from potential harm. To further this aim, SORA created an individualized three-tiered classification and registration scheme based upon perceived risk of re-offense. While the degree of public access to certain information, including a sex offender’s address, varies according to classification, all sex offenders must register with the Division of Criminal Justice Services and verify certain personal information with law enforcement agencies having jurisdiction on a regular basis. A sex offender’s home, school, work and internet addresses, among other things, are included in the registration/verification process and a sex offender must report address changes to his/her local law enforcement agency having jurisdiction.

Thus with the enactment of the Sex Offender Management and Treatment Act, the Legislature acknowledged, among other things, the need for flexibility in the State’s management and treatment of sex offenders. Such state policy stands in stark contrast to the rigidity of Local Law No. 8. Drug possession is different.

Perhaps the most compelling evidence of the State’s intent to occupy the field of sex offender regulation (including the residency of said offenders) is found in chapter 568 of the Laws of 2008, which is instructively entitled “Placement of Certain Sex Offenders.” These laws require the Division of Parole, the Division of Probation and the Office of Temporary and Disability Assistance to establish housing guidelines for level two and three sex offenders who are currently on probationary supervision, parole or who have applied for or are receiving public assistance. In addition, Executive Law § 243 (4); § 259 (5) and Social Services Law § 20 (8) (a) each set forth the following list of factors that the above agencies must consider when reviewing a housing request from a level two or three sex offender: “(a) the location of other sex offenders required to register under the sex offender registration act, specifically whether there is a concentration of registered sex offenders in a certain residential area or municipality; “(b) the number of registered sex offenders residing at a particular property; “(c) the proximity of entities with vulnerable populations; “(d) accessibility to family members, friends or other supportive services, including, but not limited to, locally available sex offender treatment programs with preference for placement of such individuals into programs that have demonstrated effectiveness in reducing sex offender recidivism and increasing public safety; and “(e) the availability of permanent, stable housing in order to reduce the likelihood that such offenders will be transient”.

Thus, the placement of sex offenders is statutorily vested with the Division of Parole, the Division of Probation and the Office of Temporary and Disability Assistance. With consideration of the enumerated factors that these government agencies must now consider, it is entirely possible, based on a sex offender’s individual circumstance that the most appropriate residence for a particular sex offender is within an area that Local Law No. 8 prohibits. It is therefore likely that Local Law No. 8 would act to frustrate state policy and law. Moreover, it is particularly instructive that the Governor’s Approval Memorandum to chapter 568 of the Laws of 2008 provides, in relevant part, that “finding suitable housing for any offender and especially for those who are returning to the community after serving a long prison sentence is an enormous challenge given the shortage of affordable housing in many communities. For sex offenders who are seeking housing, these placements are made more challenging by well-intentioned: (1) State laws restricting sex offenders who are on probation or parole from entering within 1000 feet of school grounds; and (2) the proliferation of local ordinances imposing even more restrictive residency limitations on registered sex offenders. One result of these restrictions is that the Division of Parole, local probation departments and local social services officials struggle daily to find suitable housing for these offenders. Marijuana was not an issue.

Thus, the Legislature has affirmatively recognized the proliferation of, and problems resulting from, local residency restrictions and has categorically stated that the placement of sex offenders in the community has been and will continue to be an area for state governance.
The State’s legislative pronouncements to date unquestionably establish, to the court’s satisfaction, that the regulation and management of sex offenders (including sex offender residency restrictions) is the exclusive province of the State, and thus, Local Law No. 8 is preempted by state law and will not be given effect.

Accordingly, the court held that the motion to dismiss is granted.

It is well settled that preemption applies both in cases of express conflict between local and state law and in cases where the State has evidenced its intent to occupy the field. If there has been a violation of this rule, seek the assistance of an Albany Sex Crime Attorney and/or Albany Criminal Attorney at Stephen Bilkis and Associates. Call us

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