Zuneska v. Cnty. of Suffolk
| Decision Date | 19 September 2018 |
| Docket Number | 16-CV-0620(JS)(ARL) |
| Citation | 338 F.Supp.3d 102 |
| Parties | Robert ZUNESKA, Plaintiff, v. The COUNTY OF SUFFOLK, Parents for Megan's Law and The Crime Victims Center, and John Does 1-10, Defendants |
| Court | U.S. District Court — Eastern District of New York |
For Plaintiff: Vesselin V. Mitev, Esq., Ray, Mitev & Associates, 122 North County Road, P.O. Box 5440, Miller Place, NY 11764
For Defendants: The County of Suffolk, Marlene L. Budd, Esq., Elaine M. Barraga, Esq., Suffolk County Attorney's Office, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, NY 11788
Parents for Megan's Law and The Crime Victims Center, Michael A. Miranda, Esq., Richard B. Epstein, Esq., Miranda Sambursky Slone Sklarin Verveniotis LLP, 240 Mineola Boulevard, Mineola, NY 11501
Pending before the Court are defendant the County of Suffolk's (the "County") motion for partial summary judgment and defendant Parents for Megan's Law's1 ("PFML," and together with the County, "Defendants") motion for summary judgment seeking dismissal of plaintiff Robert Zuneska's ("Plaintiff") claims. (Cty.'s Mot., Docket Entry 34; PFML's Mot., Docket Entry 35.) For the following reasons, PFML's motion is GRANTED and the County's motion is GRANTED IN PART and DENIED IN PART.
Under New York State's Sex Offender Registration Act, N.Y. Correction Law §§ 168 etseq. ("SORA"), sex offenders must register with the New York State Division of Criminal Justice Services (the "Division"). Jones II, 2018 WL 2023477, at *1 (citing N.Y. Correction Law § 168-a(5), 168-f(1) ). Sex offenders are classified pursuant to SORA as level one ("Level One Offenders"), level two ("Level Two Offenders"), or level three offenders ("Level Three Offenders"). Id. (citing N.Y. Correction Law § 168-l(6) ). "For as long as the offender is required to register, he or she is required to report his or her address to the Division on an annual basis, and for Level One and Level Two Offenders, to appear at a local law enforcement agency and provide a current photograph every three years." Id. (citing N.Y. Correction Law § 168-f ). While Level One Offenders remain on the registry for twenty years, Level Two and Level Three Offenders remain on the registry for life. Id.
On December 7, 1998, Plaintiff pled guilty to Rape in the Third Degree. (Cty.'s 56.1 Stmt. ¶ 11.) In connection with his conviction, Plaintiff was classified as a Level One Offender under SORA, and as a result, he is required to report his residence to the Division on an annual basis and personally appear to be photographed at his local police precinct every three years. (PFML's 56.1 Stmt. ¶¶ 67-69); see N.Y. Correction Law § 168-f(2)(b-3). Plaintiff is required to remain on the sex offender registry until February 23, 2019. (Cty.'s 56.1 Stmt. ¶ 28.)
On February 6, 2007, by Resolution 52-2007, the County adopted Article IV of Suffolk County Code Chapter 1122, and on May 15, 2007, by Resolution 466-2007, it amended and added to that Article. See Suffolk County Code Art. IV, available at https://ecode360.com/15135035. In relevant part, Article IV of Chapter 1122 authorizes the Suffolk County Sheriff, in areas outside the Suffolk County Police District, to use deputy sheriffs to conduct initial address verifications of registered sex offenders and perform "random spot-checks of these addresses to ensure that registered sex offenders are residing at the address they have provided." Suffolk County Code § 1122-11. Under Suffolk County Code § 1122-12 ("Section 1122-12"), however, the Suffolk County Sheriff is not to perform verifications and spot-checks in towns and villages that have requested, in writing, that the Sheriff not perform these duties.
On December 7, 2010, the County passed the Homeless Sex Offender Act, Local Law 3-2011, Suffolk County Code Chapter 745, Article V (the "HSOA"). The HSOA requires a "homeless sex offender"--"[a]ny natural person required to register as a sex offender pursuant to [SORA] who has so registered, and who does not have a permanent residence on file," (Suffolk County Code § 745-23)--who is present in the County to "report his or her overnight location to the Suffolk County Police Department [ ("SCPD") ] by 11:59 p.m. each day," (Cty.'s 56.1 Stmt. ¶ 29; Suffolk County Code § 745-24). "Any person who violates [the HSOA] once shall be guilty of a misdemeanor punishable by a fine of up to $1,000 and/or up to one year's imprisonment." (Suffolk Cty. Code § 745-26.)
On February 5, 2013, the HSOA was modified by the County's passage of the Community Protection Act, Local Law 10-2013, Suffolk County Code Chapter 745, Article VII (the "CPA"). Under the CPA, a registered sex offender seeking emergency housing is required to report "his or her overnight location within one hour of checking in, registering, being placed, etc., in an emergency shelter or by 11:59 p.m. each day, whichever is earlier, to the SCPD." (Cty.'s 56.1 Stmt. ¶ 30; Suffolk County Code § 745-35(C).) "Any person who fails to report his or her overnight locations as required by the [CPA] shall be guilty of a misdemeanor punishable by a fine of up to $1,000 and/or up to one year in jail." (Suffolk Cty. Code § 745-37.)
It is undisputed that from the time Plaintiff's sex offender registration period began in 1999, he was never homeless, he always reported his home address to the Division, and he was never found to have violated the check-in requirements of the HSOA or the CPA. (Cty.'s 56.1 Stmt. ¶¶ 31-32; see Pl.'s Cty. Resp. ¶ 33.)
In addition to modifying the HSOA, the CPA authorized SCPD to contract with PFML to conduct address verifications of registered sex offenders. (PFML's 56.1 Stmt. ¶ 2.) PFML is a not-for-profit organization that seeks to prevent and treat child sexual abuse and to provide services for victims of violent crime, and Laura Ahearn served as its Executive Director during the relevant time. (PFML's 56.1 Stmt. ¶ 1; Ahearn Dep. 7:17-8:2.) Pursuant to the CPA, the County--acting through SCPD--entered into a contract with PFML, effective May 1, 2013 through April 30, 2016 (the "Contract"). Under the relevant terms of the Contract, PFML agreed to verify the addresses of registered sex offenders. (Contract § III.)
The Contract required PFML to use Registry Verification Field Representatives ("RVR" or "RVRs") "to conduct in-person Home Address Verifications for Level One, Level Two and Level Three Sex Offenders required to report pursuant to SORA, excluding Homeless Sex Offenders and persons currently incarcerated ...." (Contract §§ I.E, III.A.2.) Under the Contract, RVRs were retired law enforcement officers employed by PFML "whose principal duties include[d] in-person or other means of verification of Sex Offender home or work addresses." (Contract § I.E.) When conducting in-person home address verifications, RVRs were required to use unmarked vehicles and display photographic identification that did "not resemble law enforcement identification." (Contract §§ III.A.2, III.A.3.) RVRs were to verify the home addresses of Level One Offenders, like Plaintiff, once per year. (Contract § III.A.5; PFML's 56.1 Stmt. ¶ 67.)
Ahearn testified that PFML's role under the Contract was to ensure that the sex offender registry was up to date. (Ahearn Dep. 70:15-71:9.) According to Ahearn, when RVRs were unable to verify information on the registry because a certain sex offender was not home, or the address was a vacant lot or an abandoned house, RVRs would notify law enforcement. (Ahearn Dep. 59:11-22.) Similarly, she testified that some registrants did not wish to cooperate with the RVRs, and if they did not cooperate, PFML would inform SCPD that they could not verify the offender's information. (Ahearn Dep. 67:17-68:8; see also Ahearn Dep. 71:5-9 ( ).)
Ahearn testified that RVRs' notifications to SCPD might be in the form of a Sex Offender Registration Tip, which informed SCPD "that there might be an inconsistency in the registry." (Ahearn Dep. 59:20-60:9.) She continued that after providing the tip, SCPD would decide whether to investigate the sex offender's compliance with registration requirements. (Ahearn Dep. 59:22-61:9.)
Detective Lieutenant Steven Hernandez of SCPD ("Detective Hernandez"), who was responsible for implementing the CPA, testified that he could not compel offenders to comply with RVRs because RVRs were not law enforcement officers. Further, he testified that if offenders asked SCPD if they had to cooperate with RVRs, SCPD detectives would tell the offenders that they were not required to do so. (Hernandez Dep. 54:2-14.)
Ahearn testified that shortly after the RVR program was implemented, a sex offender threatened to "slit the throats of the RVRs." (Ahearn Dep. 82:15-23.) She testified that, in an effort to avoid harm to PFML staff, she reached out to the County to send a letter to announce that SCPD was collaborating with PFML. (See Ahearn Dep. 81:25-83:14.) As a result, in July 2013, (Pl.'s Dep., Miranda Decl. Ex. C, Docket Entry 36-3, 67:14-68:6), Detective Hernandez sent a letter to notify offenders of the Contract between SCPD and PFML (the "Letter"), ...
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