Matter of Williams v. Department of Corr. & Community Supervision

Kapnick, J.

(dissenting in part). I agree with the majority’s holding that “both SARA, as originally enacted, and the 2005 amendments, were intended to be civil measures designed to protect the public.” However, I depart from the majority’s holding insofar as it concludes that the statute is not punitive in its effect and does not violate petitioner’s substantive due process rights. In my view, the 1,000-foot buffer zone constitutes a retroactive punishment imposed on petitioner and other sex offenders who committed their crimes before the amendment of Executive Law § 259-c (14), in violation of the Ex Post Facto *166 Clause of the United States Constitution, because the civil intent of the Sexual Assault Reform Act (SARA) is negated by the statute’s punitive effect (see Smith v Doe, 538 US 84, 92, 97 [2003]). I reach this conclusion after considering the relevant factors referred to in Smith ( 538 US at 97 , citing Kennedy v Mendoza-Martinez, 372 US 144, 168-169 [1963]) and employed by the majority’s analysis. These factors look to “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose” (Smith, 538 US at 97 ).

Petitioner’s unrebutted evidence establishes that he is barred from living in or traveling to virtually all parts of Manhattan, where he allegedly lived for more than 20 years before his incarceration, and large areas of the other boroughs of New York City. 1 His parole officer’s office is located in a dense area of central Manhattan, as are substance abuse and sex offender treatment programs that he is required to attend and the offices of his attorney and social worker. Those locations all appear to be in no-go zones, according to the map petitioner submitted, and apparently petitioner would be required to enter no-go zones to reach them regardless of where he resided in New York City. 2

Even the majority concedes that “[t]here is no question that SARA on its face imposes affirmative restraints on petitioner, as well as anyone else to which it applies.” These affirmative restraints are “not [merely] residency restriction [s], but [constitute] a comprehensive movement restriction” (Devine v Annucci, 45 Misc 3d 1001, 1007 [Sup Ct, Kings County 2014] [analyzing the punitive effect of Executive Law § 259 (c) (14)]). Further, the majority agrees that this restriction amounts to “banishment,” which is defined as “compelling [an individual] to quit a city, place, or country, for a specific period of time” (United States v Ju Toy, 198 US 253, 269 [1905, Brewer, J., dissenting]) and has historically been regarded as a form of punishment (see Stogner v California, 539 US 607, 614 [2003], citing Calder v Bull, 3 US 386 [1798]; see also Ju Toy, 198 US at 269 [“The forcible removal of a citizen from his country . . . *167 by whatever name called ... is always considered a punishment”]). Moreover, the majority does not disagree that the operation of the statute “serve[s] the goal of deterrence!,]” which is a traditional aim of punishment (Mendoza-Martinez, 372 US at 168 ).

It would appear, even in the majority’s view, that these factors weigh in petitioner’s favor. Nevertheless, the majority holds that “[b]ecause . . . SARA only applies to parolees, who otherwise have restricted liberty, these factors do not strongly support a conclusion that SARA is punitive in effect.” To support this assertion, the majority cites Morrissey v Brewer ( 408 US 471, 482 [1972]) and Matter of Williams v New York State Div. of Parole ( 71 AD3d 524 [1st Dept 2010], appeal dismissed 15 NY3d 770 [2010], lv denied 15 NY3d 710 [2010]), neither of which address alleged violations of the Ex Post Facto Clause or consider the Smith factors. Indeed, Morrissey only concerned the narrow question of whether the Due Process Clause of the Fourteenth Amendment generally applies to parole revocations ( 408 US at 472 ), and Williams examined a CPLR article 78 petition, in which a parolee challenged a specific special condition of his parole, which limited the contact he was allowed to have with his wife ( 71 AD3d at 524 ). These cases certainly make clear that parolees are uniquely situated, as they are properly subject to many restrictions not applicable to other citizens, but also enjoy more liberty than those who are incarcerated (Morrissey, 408 US at 482 ). However, the majority does not cite any cases to support the notion that these Smith factors, which tend to show the punitive effect of the subject law, may be discounted or disregarded simply because parolees hold a restricted liberty interest. In my view, these Smith factors clearly support a finding that the 2005 amendment is punitive in its effect and therefore violates the Ex Post Facto Clause.

As the majority points out, the next factors are the most important considerations in this analysis {Smith, 538 US at 102 ). It is instructive to note that petitioner does not challenge the part of the law barring him from entering the real property boundaries of schools; rather, he challenges the amendment adding an additional buffer of 1,000 feet around schools, which seems to be equivalent to about four short blocks in Manhattan. 3 Contrary to the majority’s holding, nothing in the record, in *168 the legislative findings, or in common knowledge leads to the conclusion that a buffer zone as large as 1,000 feet has a rational connection to the legitimate state interest of protecting children from being victimized by sex offenders. Indeed, petitioner points to data that supports the notion that sex crimes are generally committed by someone known to the victim, especially when it comes to child victims.

Additionally, the majority’s statement that petitioner must meet the burden of showing that the amendment “serves no legitimate governmental purpose” (citing Ciafone v Kenyatta, 27 AD3d 143, 151-152 [2d Dept 2005]) is somewhat misleading. Rather, “a law need have only a rational relationship to a legitimate state interest; . . . even if the law appears unwise or works to the detriment of one group or the other” (Ciafone, 27 AD3d at 152 [holding that a law that provided victims of crime a civil mechanism to seek financial redress against their assailants is rationally related to the State’s interest in ensuring that victims are compensated by those that harm them]). Here, I do not dispute that the State has a legitimate governmental interest in protecting children from convicted sex offenders. In my view, however, there is an insufficient factual context to support a rational connection between the 1,000-foot movement and residency restriction and its stated legitimate purpose of protecting children from sex offenders (see Romer v Evans, 517 US 620, 632-633 [1996]).

A lack of a rational relationship between the amendment and its stated purpose is also apparent from the fact that it only applies to paroled sex offenders, without any reference to statistics or data supporting the notion that recidivism rates among paroled sex offenders is any higher than those who are released without parole. Additionally, I point out that the alleged rational relationship here between the amendment and its intended purposes is very different from the situations cited by the majority where various types of criminal offenders are barred from contact with their actual, not potential, victims or where orders of protection are issued.

As to the final factor, the petitioner points to two ways in which the amendment is excessive in relation to its purpose. First, it applies to certain sex offenders (those designated a level *169 three sex offender under the Sex Offender Registration Act), regardless of the age of their victim. The amendment is also excessive in making the ban effective 24 hours a day, 365 days a year, which includes times when schools predictably will be closed.

Based on the foregoing, I would find that petitioner has met his burden to rebut the presumption of constitutionality of the amendment (see LaValle v Hayden, 98 NY2d 155, 161 [2002]) and would find that it is punitive in its effect and therefore violates the Ex Post Facto Clause.

As to petitioner’s argument that he was deprived of a fundamental constitutional right to travel, I agree with the majority that even assuming that a constitutional right to intrastate travel exists (see King v New Rochelle Mun. Hous. Auth., 442 F2d 646, 648 [2d Cir 1971], cert denied 404 US 863 [1971]), “an individual’s constitutional right to travel . . . [is] legally extinguished by a valid conviction followed by imprisonment, [and] is not revived by the change in status from prisoner to parolee” (Bagley v Harvey, 718 F2d 921, 924 [9th Cir 1983]).

In the absence of a fundamental constitutional right, petitioner’s substantive due process claim under the United States Constitution depends upon whether the SARA amendment’s deprivation of his liberty meets “the (unexacting) standard of rationally advancing some legitimate governmental purpose” (Reno v Flores, 507 US 292, 306 [1993]). Under the more protective Due Process Clause of the New York State Constitution (see People v LaValle, 3 NY3d 88, 127 [2004]), petitioner’s due process claim “requires a balancing of the competing interests at stake: the importance of the right asserted and the extent of the infringement are weighed against the institutional needs and objectives being promoted” (Matter of Lucas v Scully, 71 NY2d 399, 406 [1988]). For the reasons discussed above as to the lack of a rational connection between the restriction and its stated goal and the excessiveness of the restriction in relation to the goal, I would find that the 2005 SARA amendment violates petitioner’s right to substantive due process under both the Federal and State Constitutions.

Andrias, J.P., and Moskowitz, J., concur with Gische, J.; Kapnick, J., dissents in part in a separate opinion.

Judgment, Supreme Court, New York County, entered January 28, 2014, affirmed, without costs.

. Indeed, a discretionary condition of petitioner’s parole prevents him from leaving the City of New York without receiving prior permission from his parole officer.

. As noted by the majority, even the Bellevue shelter where parolees subject to SARA were formerly placed by respondent Department of Corrections and Community Supervision, has been determined to be within a prohibited buffer zone and can no longer serve as SARA-compliant housing.

. One thousand feet is about .19 mile. One mile down a north-south avenue in Manhattan is about 20 blocks (see Michael Poliak, Knowing the Distance, NY Times, Sep. 17, 2006, available at http://www.nytimes.com/ 2006/09/17/nyregion/thecity/17fyi.html [accessed Dec. 16, 2015]). Thus, 1,000 feet equals about four blocks down a north-south avenue on the Manhattan *168 grid, although there is some slight variation (20 x .19 = 3.8). The distance between north-south avenues is a less useful benchmark because that distance variesmore widely (see id.). Insofar as those facts are not in the record, this Court may take judicial notice of such “facts of common and general knowledge” that have been “authoritatively settled” (Walker v City of New York, 46 AD3d 278, 282 [1st Dept 2007]).