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Local Law No. 8…. 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.

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