Alvarez v. Annucci, 50 SSM 35

CourtNew York Court of Appeals
Citation38 N.Y.3d 974,187 N.E.3d 1032,167 N.Y.S.3d 421
Docket Number50 SSM 35
Parties In the Matter of Luis ALVAREZ, Appellant, v. Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Decision Date22 March 2022

38 N.Y.3d 974
187 N.E.3d 1032
167 N.Y.S.3d 421

In the Matter of Luis ALVAREZ, Appellant,
Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.

No. 50 SSM 35

Court of Appeals of New York.

March 22, 2022

Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant.

Letitia James, Attorney General, New York City (Blair J. Greenwald of counsel), for respondent.

167 N.Y.S.3d 422
187 N.E.3d 1033



38 N.Y.3d 975

Order insofar as appealed from, as limited by the submissions, should be affirmed, without costs.

Petitioner pleaded guilty to sexual abuse of a child under the age of thirteen and was designated a sexually violent offender, sentenced to three years’ imprisonment and seven years’ postrelease supervision, and ultimately adjudicated a level one sex offender under the Sex Offender Registration Act. In this CPLR article 78 proceeding seeking a writ of mandamus to compel, petitioner has not established a clear legal right to relief. The residency restriction of the Sexual Assault Reform Act (SARA) applies equally to eligible offenders released on parole, conditionally released, or subject to a period of postrelease supervision.

When interpreting statutes, the clearest indicator of legislative intent, and "the starting point in any case of interpretation[,] must always be the language itself, giving effect to the plain meaning thereof" ( People ex rel. McCurdy v. Warden, Westchester County Corr. Facility, 36 N.Y.3d 251, 257, 140 N.Y.S.3d 170, 163 N.E.3d 1087 [2020] [internal quotation marks omitted]). Moreover, "[c]ourts must harmonize the various provisions of related statutes and [ ] construe them in a way that renders them internally compatible" ( id. [internal quotations omitted]). Here we again apply these well-established principles of statutory interpretation to determinations of SARA's application (see e.g. People ex rel. Negron v. Superintendent, Woodbourne Corr. Facility, 36 N.Y.3d 32, 34, 136 N.Y.S.3d 819, 160 N.E.3d 1266 [holding that the SARA residency restriction applies "only for those level three sex offenders serving a sentence for an enumerated offense"]).

In 1998, the legislature enacted the Sentencing Reform Act, amending the Penal Law to largely "abolish parole" for most felony offenses, including serious sexual offenses, and institute determinate terms of imprisonment to be followed by periods of postrelease supervision ( People v. Williams, 14 N.Y.3d 198, 206, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010] ; see L 1998, ch 1). The reforms were intended to reduce crime and make communities safer by imposing stricter penalties on violent felony offenders (see McCurdy, 36 N.Y.3d at 263–264, 140 N.Y.S.3d 170, 163 N.E.3d 1087 ; Governor's Approval

38 N.Y.3d 976

Mem, Bill Jacket, L 1998, ch 1, at 5; Assembly Bill Jacket, L 1998, ch 1, at 7). In this context, the legislature added Penal Law § 70.45(3) —entitled "[c]onditions of post-release supervision"—which provides that the Board of Parole "shall establish and impose conditions of post-release supervision in the same manner and to the same extent as it may establish and impose conditions in accordance with the executive law upon persons who are granted parole or conditional release." Further, Penal Law § 70.40 was amended to add references to postrelease supervision; namely Penal Law § 70.40(1)(b) provides that "conditions of release including those governing postrelease supervision, shall be such as may be imposed by the [Parole Board] in accordance with the provisions of the executive law."

Two years later, the Legislature enacted SARA to better protect the public, and especially children, from sex offenders determined to pose the most risk (see Budget Report, Bill Jacket, L 2000, ch 1, at 1–2; Attorney General's Mem, id. at 5–7). The SARA residency restriction bars offenders

187 N.E.3d 1034

convicted of certain sex offenses from residing within 1,000 feet of a school (see Executive Law § 259–c [14] ; Penal law § 220.24[b];

167 N.Y.S.3d 423

People v. Diack, 24 N.Y.3d 674, 682, 3 N.Y.S.3d 296, 26 N.E.3d 1151 [2015] ). Specifically, it provides that, when certain offenders are "released on parole or conditionally released pursuant to subdivision one or two of this section," the Parole Board "shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in [ Penal Law § 220.00 ] or any other facility or institution primarily used for the care or treatment of persons under the age of [18]" while such minors are present, with exceptions not relevant here ( Executive Law § 259–c [14] ).

Penal Law §§ 70.45(3) and 70.40(1)(b), when read together with SARA, mandate that the SARA residency restriction be applied equally to offenders released on parole, conditional release, or subject to a period of postrelease supervision. Section 70.45(3) expressly requires that the Parole Board place conditions on postrelease supervision "in the same manner and to the same extent" as for parole and conditional release in accordance with the Executive Law ( Penal Law §§ 70.45[3], 70.40[1][b] ). Furthermore, Executive Law § 259–c (2) gives the Parole Board "the power and duty of determining the conditions of release of the person who may be presumptively released, conditionally released[,] or subject to a period of postrelease

38 N.Y.3d 977

supervision under an indeterminate or determinate sentence of imprisonment" ( Executive Law § 259–c [2] ).

Thus, a comprehensive reading of the statutory scheme rebuts the dissent's claim that the omission of any reference to postrelease supervision in subdivision (14) of Executive Law § 259–c "must be deemed deliberate" (dissenting op. at 984, 167 N.Y.S.3d at 428, 187 N.E.3d at 1039–40). The dissent itself references Executive Law § 259–c (2) in support of its point (dissenting op. at 981 n. 4, 167 N.Y.S.3d at 426 n. 4, 187 N.E.3d at 1037 n. 4), the very place where postrelease supervision is mentioned in conjunction with conditional release and parole, plainly giving the Parole Board "the power and duty" to determine the conditions of release for each of these categories. Moreover, the dissent's conclusion that this reading of the statutes results in an absurdity because the legislature must have intended more lenient treatment for sex offenders who serve their full carceral sentences, as opposed to those given early release, is belied by the fact that Penal Law § 65.10(4–a) requires imposition of the same residency restriction on sex offenders whose sentences consist only of community supervision, namely probation and conditional discharge.

This Court has previously recognized that the "residency requirement is ‘a mandatory condition of postrelease supervision for sex offenders subject to SARA" ( McCurdy, 36 N.Y.3d at 262, 140 N.Y.S.3d 170, 163 N.E.3d 1087, quoting Executive Law § 259–c [14] ; see People ex rel. Johnson v. Superintendent, Adirondack Correctional Facility, 36 N.Y.3d 187, 200, 140 N.Y.S.3d 124, 163 N.E.3d 1041 [2020] ; Matter of Gonzalez v. Annucci, 32 N.Y.3d 461, 466, 473 n. 5, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018] ; Diack, 24 N.Y.3d at 681, 3 N.Y.S.3d 296, 26 N.E.3d 1151 ). The conclusion we reach today is the result of a plain reading of a statutory scheme enacted as part of a comprehensive and multiyear legislative effort to place more stringent restrictions on certain sex offenders living in the community. The only issue before us is the legislature's intent to impose the SARA residency restriction on

187 N.E.3d 1035

certain convicted sex offenders while subject to postrelease supervision. Despite policy objections raised by the dissent—and the rhetoric aimed at the majority—courts may not "legislate under the guise of interpretation" (

167 N.Y.S.3d 424

People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] ).

WILSON, J. (dissenting).

"When the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" ( People v. Pabon, 28 N.Y.3d 147, 152, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016] ). Where "the legislative language is clear, [we have] no occasion [to] examin[e] ... extrinsic evidence to discover legislative intent" (

38 N.Y.3d 978

Makinen v. City of New York, 30 N.Y.3d 81, 85, 64 N.Y.S.3d 622, 86 N.E.3d 514 [2017] ). To our longstanding, bedrock canon of statutory interpretation, the majority's brief memorandum adds the coda: "except when it comes to sex offenders." The plain text of the Sexual Assault Reform Act of 2000 ("SARA") provides that the residency restrictions prohibiting people convicted of certain...

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