Devine v. Annucci

• Decision Date: 24 May 2017
• Citation: 150 A.D.3d 1104,56 N.Y.S.3d 149
• Parties: In the Matter of Michael DEVINE, respondent, v. Anthony J. ANNUCCI, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1104

56 N.Y.S.3d 149

In the Matter of Michael DEVINE, respondent,

v.Anthony J. ANNUCCI, etc., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

May 24, 2017.

Eric T. Schneiderman, Attorney General, New York, NY (Steven C. Wu and Karen W. Lin of counsel), for appellants.

Lynn W.L. Fahey, New York, NY (Lisa Napoli of counsel), and Brooklyn Defender Services, Brooklyn, NY (Lisa Schreibersdorf and Susannah Karlsson of counsel), for respondent (one brief filed).

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LASALLE, JJ.

In a hybrid proceeding, inter alia, pursuant to CPLR article 78 in the nature of prohibition to prohibit the enforcement of Executive Law § 259–c(14) against the petitioner/plaintiff, and action for a judgment declaring that Executive Law § 259–c(14) is unconstitutional, Anthony J. Annucci, Acting Commissioner, Department of Corrections and Community Supervision, and Mary Osborne, Deputy Director, Sex Offender Monitoring, Department of Corrections and Community Supervision, appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Lewis, J.), dated September 29, 2014, as granted that branch of the petition/ complaint which was to prohibit them from enforcing Executive Law § 259–c(14) against the petitioner/plaintiff on the ground that Executive Law § 259–c(14) violates the Ex Post Facto Clause of the United States Constitution (U.S.C.A. Const. Art. I, § 10[1] ) as applied to the petitioner/plaintiff.

ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the petition/complaint which was pursuant to CPLR article 78 in the nature of prohibition to prohibit the appellants from enforcing Executive Law § 259–c(14) against the petitioner/plaintiff on the ground that Executive Law § 259–c(14) violates the Ex Post Facto Clause of the United States Constitution as applied to the petitioner/plaintiff is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the remaining requests for relief in the petition/complaint.

On April 23, 2000, the petitioner/plaintiff (hereinafter the petitioner), then 22 years old, committed a sex offense against a 17–year–old girl. In 2002, he was convicted of three counts of sexual abuse in the first degree and was sentenced to a term of imprisonment of seven years. He was subsequently designated a level one sex offender under the Sex Offender Registration Act (Correction Law art 6–C). In August 2008, he was conditionally released from prison. In November 2008, he was resentenced, and a five-year period of postrelease supervision (hereinafter PRS) was added to his sentence. He challenged the resentence, and it was vacated by the Supreme Court. However, in March 2012, the resentence was reinstated on appeal.

Meanwhile, the petitioner met his girlfriend and began residing with her in her home in Brooklyn. In February 2014, the petitioner's parole officer allegedly informed him that he was living too close to a school and that he would need to move to a location that was compliant with the Sexual Assault Reform Act (Executive Law § 259–c[14] ; hereinafter SARA), which prohibits certain sex offenders who are released on parole, conditionally released, or subject to a period of PRS from knowingly entering within 1,000 feet of school grounds at any time or from knowingly entering within 1,000 feet of other facilities or institutions where minor children congregate while a minor is present. The petitioner claims that SARA imposes upon him restrictions which virtually exclude him from residing and traveling within most of the borough of Brooklyn and, indeed, most of the City of New York. On March 21, 2014, the petitioner was ordered by his parole officer to report to a three-quarter house. At the time this proceeding/action was commenced, the petitioner was residing in a three-quarter house approximately three miles from his girlfriend's home.

The petitioner commenced this hybrid proceeding, inter alia, pursuant to CPLR article 78 in the nature of prohibition to prohibit Anthony J. Annucci, Acting Commissioner, Department of Corrections and Community Supervision, and Mary Osborne, Deputy Director, Sex Offender Monitoring, Department of Corrections and Community Supervision (hereinafter together the appellants) from continuing to mandate the removal of the petitioner from his home and from restricting his movement in and around the City of New York, and action for a judgment declaring that Executive Law § 259–c(14) is unconstitutional. The Supreme Court granted that branch of the petition which sought prohibition, concluding that SARA violates the Ex Post Facto Clause of the United States Constitution (U.S.C.A. Const. Art. I, § 10[1] ) as applied to the petitioner, and denied the remaining requests for relief as academic.

The issue of whether it is permissible to retroactively apply SARA, which became effective on February 1, 2001, after the petitioner had committed the underlying sex offense, turns upon whether such application would violate the Ex Post Facto Clause of the United States Constitution, which provides that "[n]o State shall ... pass any ... ex post facto Law" (U.S.C.A. Const. Art. I, § 10[1] ). The constitutional prohibition against ex post facto laws applies to "penal statutes which disadvantage the offender affected by them" (Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 ). "A statute will be considered an ex post facto law if it ‘punishes as a crime an act previously committed, which was innocent when done,’ ‘makes more burdensome the punishment for a crime, after its commission,’ or ‘deprives one charged with crime of any defense available according to law at the time when the act was committed’ " (people v. foster, 87 a.d.3d 299, 306, 927 n.y.s.2d 92, quoting Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 ; see Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 ; Collins v. Youngblood, 497 U.S. at 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 ; Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 ; Kellogg v. Travis, 100 N.Y.2d 407, 410, 764 N.Y.S.2d 376, 796 N.E.2d 467 ). In contrast, a statute that is enacted for nonpunitive purposes, and is not so punitive in effect as to negate that nonpunitive intent, may be retroactively applied without violating the Ex Post Facto Clause (see U.S. v. Ward, 448 U.S. 242, 248–249, 100 S.Ct. 2636, 65 L.Ed.2d 742 ).

To determine whether the prohibition against retroactive punishment imposed by the Ex Post Facto Clause applies, a court must first determine whether the legislature meant the statute to enact a regulatory scheme that is civil and nonpunitive (see Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 ; ...