M.G. v. Travis

• Decision Date: 09 December 1997
• Citation: 667 N.Y.S.2d 11,236 A.D.2d 163
• Parties: , 1997 N.Y. Slip Op. 10,542, 1997 N.Y. Slip Op. 10,543 In re M.G., etc., Petitioner-Appellant, v. Brian D. TRAVIS, as Chairman of the New York State Division of Parole, et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 11

667 N.Y.S.2d 11

236 A.D.2d 163, 1997 N.Y. Slip Op. 10,542,

1997 N.Y. Slip Op. 10,543

In re M.G., etc., Petitioner-Appellant, v. Brian D. TRAVIS, as Chairman of the New York State Division of Parole, et al., Respondents-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 9, 1997.

Michael S. Pollok, of counsel (Hoffman Pollok & Pickholz, attorneys), for petitioner-appellant.

Andrew C. Tsunis and Valerie Singleton, of counsel (Dennis C. Vacco, attorney), for respondents-respondents.

Before WALLACH, J.P., and NARDELLI, TOM, MAZZARELLI and COLABELLA, JJ.

NARDELLI, Justice.

Petitioner challenges the new conditions of parole that were imposed upon him in conjunction with the reporting and notification provisions of the newly enacted New York Megan's Law. While not strictly required by such law, these conditions, in toto, meet the spirit and intent of the Legislature in enacting Megan's Law and are within the responsibility of the Division of Parole. We find that the imposition of these conditions after petitioner's release from prison, and, indeed, after approximately eight years on parole, is not violative of petitioner's Double Jeopardy rights and is not arbitrary or capricious. Prevention, and not punishment, is the primary purpose of Megan's Law. While we are not unmindful of the burdens placed upon petitioner in adhering to the multiple restrictive conditions herein, it is the Division of Parole that has the judicial function of setting the terms of release in parole. The difficult area of sexual abuse of children and prevention has no one easy solution.

Petitioner was convicted in 1980 of two counts of sodomy in the first degree, one count of sexual abuse in the first degree and one count of endangering the welfare of a child and sentenced to concurrent terms of 8 1/3 to 25 years and 6 to 18 years on the sodomy convictions, 2 1/3 to 7 years on the sexual abuse conviction and a term of one year for endangering the welfare of a child. The petitioner's maximum expiration date is September 13, 2005. Petitioner served seven and one-half years and was released on parole on January 13, 1989, with three conditions: that he avoid the victims, that he seek employment and that he undergo psychotherapy. Petitioner has remained on parole for more than eight years without a single allegation of any violation. However, after the passage of the New York State Sex Offender Registration Act ("SORA"), New York Correction Law § 168 et seq., commonly referred to as New York's "Megan's Law," which became effective on January 21, 1996, the respondents imposed upon the petitioner what he refers to as 17 new "special conditions" of parole in May and June of 1996 without notice or an opportunity to be heard.

Since the petitioner refers to 17 conditions and the respondents mention 14 new conditions, we have taken the new conditions mentioned in the three dated certificates from the Division of Parole signed by petitioner "under protest" in May and June of 1996. Instead of citing each of the conditions in detail, we enumerate them in the following titles that describe their nature: (1) Registration, (2) Therapy, (3) No contact with victims, (4) Curfew, (5) No contact with minors, (6) Avoidance of play areas, (7) No possession of toys, (8) No employment, salaried or volunteer, in a facility where minors are present, (9) No use of a Post Office Box, (10) Avoidance of scene of prior sexual crimes, (11) No travel outside the five boroughs of New York City, (12) No possession of sexually explicit or pornographic material, (13) No participation in any on-line computer service involving the exchange of pornographic or sexually explicit messages, (14) No possession of video equipment, (15) No telephone calls to sexual services, (16) No employment in private homes, (17) No picking up hitchhikers or offering rides to others in automobile, (18) No consumption of alcohol or remaining in location that provides alcohol.

Almost all of the conditions provide that exemptions can be sought and obtained with the prior knowledge and consent of the parole officer.

In July of 1996, the petitioner brought this Article 78 proceeding seeking to enjoin the Division of Parole from enforcing these "special conditions" and to annul them as arbitrary and capricious. Petitioner also contends that the imposition of these conditions constitutes "punishment" for the same offense and, therefore, is violative of the Double Jeopardy Clause of the United States Constitution and Article I, Section 6 of the New York State Constitution.

The condition that petitioner register with the Sex Offenders Registry imposed under the New York State Sex Offender Registration Act, New York Correction Law § 168 et seq., is constitutional. The requirement for sex offenders to register under the Act has been upheld by the Federal Court in Doe v. Pataki, 940 F.Supp. 603, affd. in part, revd in part 2d Cir., 120 F.3d 1263. The District Court further upheld the retroactivity of the registration provisions under the Act (id. at 630-31). The Court of Appeals for the Second Circuit found, contrary to the conclusion of the District Court, that the notification requirements of the statute did not constitute "punishment for purposes of the Ex Post Facto Clause" (120 F.3d at 1285). The Court, however, agreed with the District Court that "the registration requirements of the SORA do not impose punishment" (id. at 1284). Doe v. Pataki dealt with the issue of whether Megan's Law violated Article 1, § 10 of the United States Constitution, which prohibits states from enacting ex post facto statutes. The Legislature is prohibited from retroactively changing the definition of a crime or increasing the punishment for it (Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719-2720, 111 L.Ed.2d 30). The Second Circuit Court of Appeals recognized that the statute was civil and remedial and not criminal and punitive in purpose (see, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104-1105, 79 L.Ed.2d 361) and upheld it against challenge on the basis that the requirements for notification and registration did not constitute punishment (Doe v. Pataki, supra).

The registration provisions of the New York Megan's Law also do not violate petitioner's rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution as multiple punishments for the same offense. As noted, the provisions of the Act do not constitute "punishment." The registration provisions were adopted as a remedial measure to ameliorate the danger to the public caused by the release of sex offenders, to address recidivism and to provide law enforcement with an investigative tool for identifying and acting upon potential recurrence of sexual offenses by past offenders.

In a recent decision, the Court of Appeals, in an opinion by Judge Wesley, found that the criminal prosecution of inmates who have previously been the subject of internal prison disciplinary sanctions does not offend either the constitutional or the statutory (Criminal Procedure Law Article 40) protections against double jeopardy (see, People v. Vasquez, 89 N.Y.2d 521, 655 N.Y.S.2d 870, 678 N.E.2d 482, cert. denied --- U.S. ----, 118 S.Ct. 131, 139 L.Ed.2d 80 and Double Jeopardy history set forth therein at p. 527, 655 N.Y.S.2d 870, 678 N.E.2d 482 et seq.). A fortiori, the promulgation of conditions of parole for inmates who have been released before the expiration of their sentences does not constitute a violation of this constitutional protection. In fact, as noted, it is not even implicated, since we are not dealing with punishment at all, but prevention and deterrence.

Petitioner's contention that he should have been afforded a hearing before the imposition of the new conditions is without merit. There is no Federal or State constitutional right for an inmate to be released before serving his full sentence (Greenholtz v. Inmates of...