Williams v. Dep't of Corr. & Cmty. Supervision

• Decision Date: 12 January 2016
• Docket Number: 400638/13,15259
• Citation: 24 N.Y.S.3d 18,136 A.D.3d 147
• Parties: In re Foster WILLIAMS, Petitioner–Appellant, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 147
24 N.Y.S.3d 18

In re Foster WILLIAMS, Petitioner–Appellant,
v.
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent–Respondent.

400638/13
15259

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

Jan. 12, 2016.

24 N.Y.S.3d 19

Richard M. Greenberg, Office of the Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant.

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

24 N.Y.S.3d 20

RICHARD T. ANDRIAS, J.P., KARLA A. MOSKOWITZ, JUDITH J. GISCHE, BARBARA R. KAPNICK, JJ.

GISCHE, J.

136 A.D.3d 149

In this appeal we are asked to consider whether the mandatory 1000–foot buffer zone, contained in New York's Sexual Assault Reform Act (Executive Law § 259–c[14] ) (SARA), which prohibits sex offender parolees from residing or traveling near schools or other institutions where minor children congregate, violates the Ex Post Facto Clause of the United States Constitution, and substantive due process rights under the United States and New York Stated Constitutions. These are issues of first impression in our Court.¹ For the reasons that follow, we hold that under the highly deferential constitutional standard applicable to legislative enactments, SARA does not violate either the Federal or the New York State Constitutions. Because SARA meets the tests of constitutionality, issues regarding whether there are better or wiser ways to achieve the law's stated objectives are policy decisions belonging to the legislature and not the courts (People v. Parilla, 109 A.D.3d 20, 29, 970 N.Y.S.2d 497 [1st Dept.2013], lv. denied 21 N.Y.3d 865, 2013 WL 4792074 [2013] ).

On November 21, 1995, petitioner was convicted of rape in the first degree, three counts of sodomy in the first degree, and endangering the welfare of a child. His conviction was affirmed on appeal (People v. Williams, 257 A.D.2d 425, 425, 682 N.Y.S.2d 581 [1st Dept.1999], lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517 [1999] ). The victim of the crimes was a nine-year old girl. Petitioner was sentenced to a prison term of 7 to 21 years (see id. ). On December 20, 2012, when petitioner was 64 years old, he was released to parole supervision. He is due to complete his sentence on November 18, 2016.

In accordance with SARA, the granting of petitioner's parole was subject to mandatory conditions that restrict both the location of his residency and his knowing travel to no closer than 1000 feet of school grounds. Petitioner claims that the residency restriction has made it impossible to find housing within the borough of Manhattan and nearly impossible to find

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housing elsewhere within the city. At the time the petition was filed, petitioner was residing in the men's homeless shelter at Bellevue, which is located within a zone that is otherwise prohibited under SARA² . Petitioner also claims that he is unable to reasonably travel within Manhattan and that even required visits to his parole officer,

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and travel to drug and sex offender treatment programs, are made in violation of SARA's restriction on travel. He maintains that the restrictions impede his ability to visit doctors, lawyers, social workers, friends and family.³ The record contains a demonstrative depiction, entitled "Manhattan No-go Zones and Public Bus Network," showing that most of Manhattan is off-limits to petitioner. Although the map truncates portions of the Bronx and Queens, it shows "no-go" or buffer zones in those boroughs as well. There is no depiction of Brooklyn, Staten Island or any other part of New York State.

Petitioner filed a hybrid declaratory judgment/Article 78 petition claiming that SARA violates the Ex Post Facto clause of the United States Constitution and his substantive due process rights under both the Federal and New York State Constitutions. Respondent filed an answer asserting that SARA is constitutional on its face and denying most of petitioner's factual allegations about SARA's effect on him. The motion court held that SARA is constitutional.

SARA was first passed in 2000, only after petitioner was convicted. As originally enacted, it barred sex offenders whose victims were minors from knowingly entering school grounds or a facility or institution that primarily cares for minors. The restriction only applied to sex offenders convicted of certain enumerated offenses and only if the victim had been under the age of 18. It only applied while sex offenders were on parole and still under the custody and supervision of respondent the Department of Corrections and Community Supervision

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(DOCCS) (L. 2000, ch. 1, § 8). While the bar on entering school grounds applied at all times of day and night, the bar on entering a facility or institution only applied when minors were present. The law required that the bar be made a mandatory condition of parole. A violation of SARA was a violation of parole. No separate sanction, criminal or otherwise, was specified for a violation (Executive Law § 259–c[14] ). There were limited exceptions to SARA's application if the parolee was a student or employee working at the school or institution or had a family member enrolled there.⁴

Effective September 2005, SARA was amended in two respects. First, the definition of "school grounds" was broadened to include publically accessible areas within 1000 feet of school property (L. 20005 ch. 544, § 2). In expanding the geographical definition of "school grounds," SARA incorporated a definition already contained in Penal Law § 220.00. Second, SARA's coverage was extended to include sex offenders who are classified as high risk, level three sex offenders under the Sex Offender Registration Act (SORA). Level three sex offenders are subject to the ban regardless of whether any of their victims were minors. Although the statute itself does not restrict the location of a residence per se, the expanded definition of "school grounds" necessarily operates to restrict places where a parolee may live and travel (People v. Diack, 24 N.Y.3d 674, 681–682, 3 N.Y.S.3d 296, 26 N.E.3d 1151 [2015] ). The law was otherwise unchanged⁵ .

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136 A.D.3d 152

Petitioner was adjudicated a level two sex offender under SORA. SARA applies to him only by virtue of the fact that he was convicted of at least one of the statutorily enumerated sex offenses⁶ and that his victim was under the age of 18.

The Ex Post Facto Clause

"The Ex Post Facto Clause of the United States Constitution [Art. I § 10] prohibits states from enacting laws that criminalize prior, then-innocent conduct; increase the punishments for past offenses; or eliminate defenses to charges for incidents that preceded the enactment" (id., Kellogg v. Travis, 100 N.Y.2d 407, 410, 764 N.Y.S.2d 376, 796 N.E.2d 467 [2003] ). "The prohibition on ex post facto laws applies only to penal statutes[,]" so that where the challenged conduct does not seek to impose a punishment, there is no constitutional violation

The threshold question for the court is whether the challenged law is retrospective—that is, does it apply to events occurring before its enactment and does it disadvantage the offender affected by it (Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 [1981] ).

136 A.D.3d 153

There is no dispute that SARA is retrospective. It was both passed and amended only after petitioner was originally convicted and it has been applied to impose mandatory restrictions on him during his period of parole.

Since the challenged enactment is retrospective, in order to determine

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whether it violates the Ex Post Facto Clause, we apply the intent-effects analysis established by the United States Supreme Court, as articulated in Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), see also People v. Parilla, 109 A.D.3d 20, 23, 970 N.Y.S.2d 497 (1st Dept.2013)lv. denied 21 N.Y.3d 865, 2013 WL 4792074 (2013). We first ascertain whether the legislature intended the statute to impose punishment or to enact a civil regulatory scheme that is nonpunitive (id. ). If the legislature intended to impose punishment, then retroactive application of the law violates the Ex Post Facto Clause, ending the court's inquiry (id. ). If, however, the legislature intended to establish civil proceedings, then the court must go on to examine whether the statutory scheme is so punitive, either in its purpose or effect, that the State's intention to deem it civil is negated (Smith v. Doe at 92, 123 S.Ct. 1140 ). Resolution of these questions is a matter of statutory interpretation (Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 [1997] ; United...