People ex rel. Rivera v. Superintendent, Woodbourne Corr. Facility
| Citation | 2023 NY Slip Op 03299 |
| Docket Number | 47 |
| Decision Date | 15 June 2023 |
| Parties | The People ex rel. Danny Rivera, Appellant, v. Superintendent, Woodbourne Correctional Facility, et al., Respondents. |
| Court | New York Court of Appeals |
Kerry Elgarten, for appellant.
Frank Brady, for respondents.
At issue in this case is whether the Sexual Assault Reform Act's (SARA) school grounds condition, as codified in Executive Law § 259-c (14), violates the Ex Post Facto Clause of the United States Constitution when applied to offenders whose crimes predated the 2005 amendments to SARA. We hold that petitioner has not met his burden to demonstrate, by the clearest proof, that it does.
In 1986, petitioner was convicted of two counts of murder in the second degree, two counts of attempted murder in the second degree, and one count of rape in the first degree, stemming from an incident where petitioner, acting in concert with four co-offenders, shot four individuals, killing two and wounding two others. Petitioner also raped one victim, a 25-year-old woman whom he later shot three times. Petitioner was sentenced to an aggregate prison term of 20 years to life. In April 2019, petitioner was granted an open parole release date of May 23, 2019. At his Sex Offender Registration Act (SORA) hearing held prior to his anticipated release, petitioner was adjudicated a level three sexually violent offender. The level three SORA designation, and the fact that petitioner is serving a sentence for an offense enumerated in Executive Law § 259-c (14), subjects petitioner to SARA's school grounds condition, which effectively prohibits him from living within 1,000 feet of a school, or "any other facility or institution primarily used for the care or treatment" of minors (Executive Law § 259-c [14]). Petitioner was unable to locate SARA-compliant housing before his open release date. Because petitioner did not satisfy the mandatory parole condition, he remained in custody until he could locate suitable housing.
In October 2020, petitioner filed a petition for a writ of habeas corpus, seeking immediate release on the grounds that SARA's residency restriction, enacted after petitioner committed his crimes, violated the Ex Post Facto Clause of the Federal Constitution as applied to him. Supreme Court granted petitioner's application and held that application of both SORA and SARA to petitioner violated the Ex Post Facto Clause because the effect of the residency restriction in prolonging petitioner's incarceration past his release date was punitive. The court ordered respondents Woodbourne Correctional Facility Superintendent and the New York State Department of Corrections and Community Supervision (collectively "DOCCS"), to release petitioner to parole supervision and enjoined DOCCS from applying the school grounds condition to him. Petitioner remained incarcerated pursuant to stays of Supreme Court's judgment until March 2021, at which time SARA-compliant housing became available and he was released to parole supervision.
The Appellate Division unanimously reversed the judgment on the law (see 200 A.D.3d 1370 [3d Dept 2021]) [1]. The Court held "that DOCCS's adherence to its statutory obligation of imposing SARA residency restrictions does not constitute a violation of the Ex Post Facto Clause" (id. at 1374-1375 [internal citation omitted]). Applying the Supreme Court's intent-effects test, the Court "acknowledge[d] that SARA's residency restriction 'constitute[s] affirmative restraint[ ], bear[s] some resemblance to historical criminal punishment, and serve[s] the goal of deterrence'" (id. at 1373). However, the Court concluded that the condition does not violate the Ex Post Facto Clause because it is both "rationally related to a conceivable, legitimate government purpose of keeping level three sex offenders more than 1,000 feet away from schools" (id. at 1374, quoting People ex rel.
Johnson v Superintendent, Adirondack Corr. Facility 36 N.Y.3d 187, 203 [2020]) and" 'tailored to impose the greatest restrictions on the riskiest sex offenders'" (id., quoting Wallace v State of New York, 40 F.Supp.3d 278, 320 [ED NY 2014]).
We granted petitioner's motion for leave to appeal (see 38 N.Y.3d 1029 [2022]).
Originally enacted in 2000 as a provision of SARA, a statutory scheme designed "to better protect the public, and especially children, from sex offenders determined to pose the most risk" (Matter of Alvarez v Annucci, 38 N.Y.3d 974, 976 [2022]), Executive Law § 259-c (14) imposed a mandatory condition prohibiting certain sex offenders from entering school grounds or other child-care facilities (see L 2000, ch 1, § 8). The condition originally applied only to those sex offenders whose crimes were committed against victims under 18 years old. In 2005, the legislature amended the provision and expanded the reach of this condition in two respects (L 2005, ch 544, § 2). First, the legislature adopted a broader definition of "school grounds," as set forth in Penal Law § 220.00 (14) (b), to include "any area accessible to the public located within [1,000] feet of" a school or child-care facility. Second, the legislature applied the school grounds condition to a second group of offenders: those designated "level three sex offenders serving a sentence for an enumerated offense" (People ex rel. Negron v Superintendent, Woodbourne Corr. Facility, 36 N.Y.3d 32, 34 [2020]). Within these two categories of sex offenders, the condition applies only to those who are on parole, conditional release, or "subject to a period of postrelease supervision" (Matter of Alvarez, 38 N.Y.3d at 976).
Though Executive Law § 259-c (14) is not a residency restriction by its explicit language, the "practical effect" of the condition "is that any sex offender who is subject to [it] is unable to reside within 1,000 feet of a school or facility as defined in Penal Law § 220.00 (14) (b)" (People v Diack, 24 N.Y.3d 674, 682 [2015]). In practice, DOCCS requires subject offenders to secure SARA-compliant housing prior to, and as a condition of, their release. In the event these offenders are unable to find compliant housing prior to their expected release date, DOCCS will not release them. Rather, those who are set to begin supervised release are either transferred to residential treatment facilities (RTFs) (see People ex rel. McCurdy v Warden, Westchester County Corr. Facility, 36 N.Y.3d 251, 254 [2020]), or remain in prison (Johnson, 36 N.Y.3d at 193) depending on the terms of the individual offender's sentence. DOCCS will only release these offenders when they secure compliant housing.
Petitioner's argument focuses exclusively on the carceral effect of Executive Law § 259-c (14). While petitioner maintains that his claim challenges both SORA and SARA, petitioner does not assert that the effects of SORA, beyond its operation by which petitioner was adjudicated a level three offender subjecting him to SARA's school grounds condition, are punitive. As such, only Executive Law § 259-c (14) is at issue in this case.
The United States Constitution's Ex Post Facto Clause prohibits states from "retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts" (Collins v Youngblood, 497 U.S. 37, 43 [1990]). The ex post facto prohibition "applies only to penal statutes" and "where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause" (Kellogg v Travis, 100 N.Y.2d 407, 410 [2003]).
To determine whether a statute violates the Ex Post Facto Clause, courts apply the Supreme Court's intent-effects test (see Smith v Doe, 538 U.S. 84, 92 [2003]). This two-pronged inquiry first considers whether the legislature intended the relevant statute to be punitive or civil in nature (see id.). If the legislature intended the statute to be punitive, its retroactive application to conduct that predates the statute violates the Ex Post Facto Clause (see id.). If not, a court must then consider whether the statute is" 'so punitive either in purpose or effect as to negate the... intention to deem it civil'" (id., quoting Kansas v Hendricks, 521 U.S. 346, 361 [1997]). The parties agree that SARA was not intended to be a punitive statutory scheme; indeed, this Court's precedent, as well as SARA's legislative history, confirms that the legislature enacted Executive Law § 259-c (14) to protect children from sex offenders, not to punish those offenders (see Matter of Alvarez, 38 N.Y.3d at 976; Johnson, 36 N.Y.3d at 203; Assembly Mem in Support, Bill Jacket, L 2005, ch 544 at 4). Thus, only the "effects" prong of the inquiry is at issue-that is, whether the effects of the school grounds condition are so punitive as to negate the legislature's intent to deem SARA a civil statutory scheme.
"Legislative enactments enjoy a strong presumption of constitutionality" (LaValle v Hayden, 98 N.Y.2d 155, 161 [2002])." '[O]nly the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty'" (Smith, 538 U.S. at 92 [some internal quotation marks omitted], quoting Hudson v United States, 522 U.S. 93, 100 [1997]). The clearest proof requirement is a "heavy burden" on the party challenging the statute (Hendricks, 521 U.S. at 361).
Moreover this Court may not consider an "as-applied" challenge to Executive Law § 259-c (14) (see Seling v Young, 531 U.S. 250, 263 [2001]). Because "[t]he civil nature of a [statutory] scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute," an "as-applied" analysis "would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's...
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