People ex rel. Johnson v. Superintendent, Adirondack Corr Facility

Decision Date03 July 2019
Docket Number526801
Citation106 N.Y.S.3d 408,174 A.D.3d 992
Parties The PEOPLE of the State of New York EX REL. Fred JOHNSON, Appellant, v. SUPERINTENDENT, ADIRONDACK CORRECTIONAL FACILITY, et al., Respondents.
CourtNew York Supreme Court — Appellate Division
MEMORANDUM AND ORDER

Devine, J. Appeal from a judgment of the Supreme Court (Meyer, J.), entered March 13, 2018 in Essex County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

As the result of a 2004 conviction for persistent sexual abuse, petitioner was adjudicated a risk level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C). In 2009, he was again convicted of persistent sexual abuse and sentenced to two years to life in prison. Both the 2004 and 2009 convictions arose from his behavior toward adult women on public transportation. Petitioner was granted parole in 2017, but the crime of conviction and his risk level designation meant that his "release was subject to the mandatory condition set forth in the Sexual Assault Reform Act [ (L 2000, ch 1, as amended by L 2005, ch 544) (hereinafter SARA) ] prohibiting him from residing within 1,000 feet of school grounds" ( Matter of Gonzalez v. Annucci , 32 N.Y.3d 461, 466, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018] ; see Executive Law § 259–c [14 ]; Penal Law § 220.00[14] ; People ex rel. Negron v. Superintendent, Woodbourne Corr. Facility, 170 A.D.3d 12, 16, 94 N.Y.S.3d 703 [2019] ).

Petitioner is on a wait list for SARA-compliant housing, has suggested no acceptable alternative and remains imprisoned. He commenced this habeas corpus proceeding pursuant to CPLR article 70 to argue, among other things, that the mandatory condition imposed by Executive Law § 259–c (14) violated his right to substantive due process. Supreme Court denied the application without a hearing. Petitioner appeals.

Preliminarily, petitioner has been granted an open parole release date and will be entitled to immediate release if the mandatory condition is found unconstitutional, rendering his claims cognizable in a habeas corpus proceeding (see People ex rel. Durham v. Annucci, 170 A.D.3d 1634, 1634, 94 N.Y.S.3d 911 [2019], lv dismissed 33 N.Y.3d 1008, 2019 WL 1996428 [2019] ; compare People ex rel. DeFlumer v. Strack, 212 A.D.2d 555, 555, 623 N.Y.S.2d 1 [1995], lv dismissed 85 N.Y.2d 966, 629 N.Y.S.2d 722, 653 N.E.2d 618 [1995] ).

Turning to the merits, "[t]here is no federal or state constitutional right to be released to parole supervision before serving a full sentence" ( People ex rel. Stevenson v. Warden of Rikers Is., 24 A.D.3d 122, 123, 806 N.Y.S.2d 185 [2005], lv denied 6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970 [2006] ; see Executive Law § 259–c [2 ]; Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7–8, 99 S.Ct. 2100, 60 L.Ed.2d 668 [1979] ; Matter of Russo v. New York State Bd. of Parole , 50 N.Y.2d 69, 73, 427 N.Y.S.2d 982, 405 N.E.2d 225 [1980] ; Matter of Briguglio v. New York State Bd. of Parole , 24 N.Y.2d 21, 26, 298 N.Y.S.2d 704, 246 N.E.2d 512 [1969] ). It is true that petitioner has been granted an open parole release date, affording him a "legitimate expectation of early release from prison" that cannot be taken away without due process ( Matter of Russo v. New York State Bd. of Parole , 50 N.Y.2d at 73, 427 N.Y.S.2d 982, 405 N.E.2d 225 ; see Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. at 12, 99 S.Ct. 2100 ; Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ; Victory v. Pataki, 814 F.3d 47, 60 [2d Cir.2016] ; Matter of Abrams v. Stanford , 150 A.D.3d 846, 848, 56 N.Y.S.3d 114 [2017] ). Parole release nevertheless remains a statutory grant of "a restricted form of liberty" prior to the expiration of a sentence ( People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 204, 460 N.Y.S.2d 746, 447 N.E.2d 689 [1983] ; accord Matter of Lopez v. Evans , 25 N.Y.3d 199, 206, 9 N.Y.S.3d 601, 31 N.E.3d 1197 [2015] ), and reasonable residential restrictions may be imposed as a condition precedent to release (see e.g. Executive Law § 259–c [2 ]; Matter of Boss v. New York State Div. of Parole , 89 A.D.3d 1265, 1266, 932 N.Y.S.2d 387 [2011] ; Matter of Breeden v. Donnelli , 26 A.D.3d 660, 660, 808 N.Y.S.2d 839 [2006] ; Matter of Lynch v. West , 24 A.D.3d 1050, 1051, 805 N.Y.S.2d 728 [2005] ; People ex rel. Stevenson v. Warden of Rikers Is., 24 A.D.3d at 123, 806 N.Y.S.2d 185 ). Therefore, although the open parole release date granted to petitioner cannot be revoked absent procedural due process, we are unpersuaded that he has a further "liberty interest [or] fundamental right ... to be free from special conditions of parole" regarding his residence under either the Federal or the State Constitution ( Matter of Williams v. Department of Corr. & Community Supervision , 136 A.D.3d 147, 164, 24 N.Y.S.3d 18 [2016], appeal dismissed 29 N.Y.3d 990, 53 N.Y.S.3d 257, 75 N.E.3d 674 [2017] ; see Morrissey v. Brewer, 408 U.S. at 480, 92 S.Ct. 2593 ).

Insofar as "[t]he right asserted by [petitioner] is not fundamental," the mandatory condition imposed by Executive Law § 259–c (14) will satisfy substantive due process "so long as it is ‘rationally related to any conceivable legitimate [s]tate purpose’ " ( Myers v. Schneiderman, 30 N.Y.3d 1, 15, 62 N.Y.S.3d 838, 85 N.E.3d 57 [2017], quoting People v. Walker, 81 N.Y.2d 661, 668, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ; see People v. Knox, 12 N.Y.3d 60, 67, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ; Matter of Williams v. Department of Corr. & Community Supervision , 136 A.D.3d at 165, 24 N.Y.S.3d 18 ). Petitioner concedes that Executive Law § 259–c (14) is aimed at the legitimate government interest of protecting "children from the risk of recidivism by certain convicted sex offenders" ( Matter of Devine v. Annucci , 150 A.D.3d 1104, 1106, 56 N.Y.S.3d 149 [2017] ; see People v. Knox, 12 N.Y.3d at 67, 875 N.Y.S.2d 828, 903 N.E.2d 1149 ; Matter of Williams v. Department of Corr. & Community Supervision , 136 A.D.3d at 164–165 ). The Legislature reasonably supposed that this aim could be accomplished by keeping certain sex offenders at a distance from schoolchildren – thereby limiting opportunities for predation – and reasonably imposed the restriction upon sex offenders who were either serving a sentence for an enumerated offense against children or had been designated risk level three sex offenders because of the threat their high risk of reoffense posed to the community (see Correction Law § 168–l [6 ][c]; Executive Law § 259–c [14 ] ). Moreover, although the Legislature could have excluded individual risk level three sex offenders from the requirements of Executive Law § 259–c (14) if their high risk of reoffense was limited to adults, "we conclude that it acted rationally in not doing so" given the lack of certainty in making such an assessment and the serious nature of sex offenses against children ( People v. Knox, 12 N.Y.3d at 69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 ; see e.g. Smith v. Doe, 538 U.S. 84, 103–104, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ).1 As a result, petitioner has not satisfied his "heavy burden of showing that [ Executive Law § 259–c (14) ] is ‘so unrelated to the achievement of any combination of legitimate purposes’ as to be irrational" ( People v. Knox, 12 N.Y.3d at 69, 875 N.Y.S.2d 828, 903 N.E.2d 1149, quoting Affronti v. Crosson, 95 N.Y.2d 713, 719, 723 N.Y.S.2d 757, 746 N.E.2d 1049 [2001] ; accord Myers v. Schneiderman, 30 N.Y.3d at 15, 62 N.Y.S.3d 838, 85 N.E.3d 57 ). Petitioner may or may not be correct when he says that the mandatory condition does not achieve its legitimate goals, but the argument that there are "better or wiser ways to achieve the law's stated objectives" must be addressed to the Legislature ( Matter of Williams v. Department of Corr. & Community Supervision , 136 A.D.3d at 149, 24 N.Y.S.3d 18 ; see Vasquez v. Foxx, 895 F.3d 515, 525 [7th Cir.2018], cert denied ––– U.S. ––––, 139 S. Ct. 797, 202 L.Ed.2d 572 [2019] ). Thus, the mandatory condition comports with substantive due process, and petitioner is not entitled to immediate release.

To the extent that petitioner's remaining contention is properly before us, we find that the Department of Corrections and Community Supervision met its obligation under Correction Law § 201(5) to provide petitioner "adequate resources to ... propose residences for investigation and approval," then "actively investigate[d]" the residences he proposed and placed him on the wait list for those found appropriate ( Matter of Gonzalez v. Annucci , 32 N.Y.3d at 474, 93 N.Y.S.3d 236, 117 N.E.3d 795 ).

Mulvey and Pritzker, JJ., concur.

Garry, P.J. (concurring).

We concur with the majority's determination, but write separately to emphasize the damaging practical consequences and questionable effectiveness of the mandatory conditions that prohibit certain sex offenders on parole, conditional release and postrelease supervision from residing within 1,000 feet of school grounds pursuant to the Sexual Assault Reform Act (L 2000, ch 1, as amended by L 2005, ch 544) (hereinafter SARA) (see Correction Law § 168–l [6 ][c]; Executive Law § 259–c [14 ] ). This well-intentioned restriction, enacted for the critically important purpose of protecting children from sexual abuse by convicted sex offenders, has not clearly served that purpose. It has, however, created unanticipated and almost insoluble conundrums for the Department of Corrections and Community Supervision (hereinafter DOCCS), the New York City Division of Homeless Services (hereinafter DHS), other agencies and municipalities, courts and, not least, prisoners such as petitioner.

Petitioner's parole is subject to SARA's residence restrictions...

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