People v. Diack

• Decision Date: 17 February 2015
• Citation: 26 N.E.3d 1151,24 N.Y.3d 674,2015 N.Y. Slip Op. 01376,3 N.Y.S.3d 296
• Parties: The PEOPLE of the State of New York, Respondent v. Michael DIACK, Appellant.
• Court: New York Court of Appeals Court of Appeals

24 N.Y.3d 674

26 N.E.3d 1151

3 N.Y.S.3d 296

2015 N.Y. Slip Op. 01376

The PEOPLE of the State of New York, Respondent

v.Michael DIACK, Appellant.

Court of Appeals of New York.

Feb. 17, 2015.

Kindlon Shanks and Associates, Albany (Kathy Manley of counsel), for appellant.

Lynn, Gartner, Dunne & Covello, LLP, Mineola (Kenneth L. Gartner, Joseph Covello and Tiffany D. Frigenti of counsel), and Carnell T. Foskey, County Attorney, Mineola, for respondent.

New York Civil Liberties Union Foundation, New York City (Dana B. Wolfe, Mariko Hirose, Corey Stoughton, Amol Sinha, Jason Starr and Christopher Dunn of counsel), for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

PIGOTT, J.

In 2006, Nassau County enacted Local Law No. 4–2006 (Local Law 4), which, as relevant here, prohibits registered sex offenders from residing within 1,000 feet of a school. In recent years, dozens of municipalities in this state have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, day-care centers, parks, youth centers and other areas where children are likely to congregate.¹ That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders. Local governments have, understandably, relied on their police power in furthering that interest.

But a local government's police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. We hold that the State's comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4.

I.

In 2001, defendant, a Nassau County resident, was convicted of the crime of possessing an obscene sexual performance by a child (Penal Law § 263.11 ). He served 22 months in prison and, upon his release from custody, was classified a level one sex offender under the Sex Offender Registration Act (Correction Law, art 6–C, § 168 et seq. ). Defendant was discharged from parole on August 19, 2004. In July 2008, defendant reported his change of address to the New York State Division of Criminal Justice Services. Upon receiving this information, the Nassau County Police Department determined that defendant had moved to an apartment located within 500 feet of two schools.

Defendant was charged by information with a violation of Nassau County Local Law 4, which is codified in Nassau County Administrative Code § 8–130.6. That provision states, in relevant part, that “[i]t shall be unlawful for any registered sex offender to establish a residence or domicile where the property line of such residence or domicile lies within: 1) one thousand feet of the property line of a school; or 2) five hundred feet of the property line of a park” (Nassau County Administrative Code § 8–130.6[a][1], [2] ). The code defines a “registered sex offender” as “a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register with the New York state division of criminal justice services, or other agency having jurisdiction,” pursuant to the Sex Offender Registration Act, regardless of whether the sex offender has actually registered (id. § 8–130.2).

Defendant moved to dismiss the information on the ground that Local Law 4 and section 8–130.6 are preempted by state law. The District Court of Nassau County granted the motion and dismissed the charge on the ground that Local Law 4 is preempted by New York's “comprehensive statutory scheme for sex offenders.” The Appellate Term reversed and reinstated the information, holding that it could not discern any express or implied intention by the legislature through the enactment of the Sex Offender Registration Act (and other state laws) to occupy the entire field so as to prohibit the enactment of local laws imposing “residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or ... seeking public assistance” (41 Misc.3d 36, 39, 974 N.Y.S.2d 235 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2013] ). A Judge of this Court granted defendant leave to appeal (22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 [2014] ).

II.

Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state (see N.Y. Const., art. IX, § 2 [c]; Municipal Home Rule Law § 10[1][i], [ii][a][12] ). This doctrine of preemption is a significant restriction on a local government's home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act ... with respect to matters of State concern’ ” (Albany Area Bldrs. Assn. v. Town of Guilderland, 74 N.Y.2d 372, 377, 547 N.Y.S.2d 627, 546 N.E.2d 920 [1989], quoting Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 497, 393 N.Y.S.2d 949, 362 N.E.2d 581 [1977] ).

Beginning with enactment of the Sex Offender Registration Act (SORA), the legislature has passed and the Governor has signed a series of laws regulating registered sex offenders, including the Sexual Assault Reform Act (SARA) in 2000, the Sex Offender Management and Treatment Act (SOMTA) in 2007, and chapter 568 of the Laws of 2008 (chapter 568). Because the legislature has not expressly stated an intent to occupy the field of sex offender residency restrictions in the aforementioned laws, our focus on this appeal is whether the legislature, by implication, has shown its intent to do so.

III.

The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” (New York State Club Assn. v. City of New York, 69 N.Y.2d 211, 217, 513 N.Y.S.2d 349, 505 N.E.2d 915 [1987], aff'd.

487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 [1988] ; see Albany Area Bldrs. Assn., 74 N.Y.2d at 377, 547 N.Y.S.2d 627, 546 N.E.2d 920 ). Although field preemption may be “express” as evidenced by the legislature's stated directive, it may also “be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 105, 468 N.Y.S.2d 596, 456 N.E.2d 487 [1983] [citations omitted] ). Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” (Albany Area Bldrs. Assn., 74 N.Y.2d at 377, 547 N.Y.S.2d 627, 546 N.E.2d 920, citing Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 334 N.Y.S.2d 129, 285 N.E.2d 285 [1972] ).

The People assert that the statutes at issue (SORA, SARA, SOMTA and chapter 568) either do not specifically mention residency at all or only tangentially touch upon residency by, for example, limiting travel by parolees and those on probation in areas with schools or childcare centers, and other places where children may congregate. Such “piecemeal” provisions, the People contend, do not constitute the type of “comprehensive and detailed regulatory scheme” from which preemption can be inferred, and it necessarily follows that the legislature meant to leave to local governments the authority to impose residency restrictions on registered sex offenders who are not on parole or probation or subject to any type of supervision. But it is clear from the State's continuing regulation with respect to identification and monitoring of registered sex offenders that its “purpose and design” is to preempt the subject of sex offender residency restriction legislation and to “occupy the entire field” so as to prohibit local governments from doing so (see Robin, 30 N.Y.2d at 350, 334 N.Y.S.2d 129, 285 N.E.2d 285 ).² We therefore reverse the order of the Appellate Term.

IV.

This State's foray into sex offender management began in 1996 with the enactment of SORA, which addressed the legislature's concern about the “danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior” (L. 1995, ch. 192, § 1). SORA, as its title makes clear, is a registration and notification statute directed at protecting the public from sex offenders, who, upon their release, are assigned a risk level dependent upon whether their risk for reoffending is low (level one), moderate (level two) or high (level three) (see Correction Law § 168–l [6][a]-[c] ). The offender is required by law to register as a sex offender for a period that correlates with his particular risk level and designation (see id. §§ 168–f, 168–h [1]-[3] ). The legislature has described SORA's registration requirement as “a proper exercise of the state's police power regulating present and ongoing conduct” of sex offenders (L. 1995, ch. 192, § 1 [emphasis supplied] ). The registration and notification requirements are, of course, applicable statewide and are aimed at providing local citizens and law enforcement agencies with critical information regarding sex offenders residing within their respective jurisdictions (see Correction Law §§ 168–f, 168–j ).

Four years later, in 2000, the legislature passed and the Governor signed...