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to respectful consideration, it is nonetheless well settled that a decision of a judge of coordinate jurisdiction is not binding precedent.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…
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