Petition for Writ of Certiorari — Angel Ortiz, Petitioner v. Dennis Breslin, Superintendent, Queensboro Correctional Facility, et al.

Supreme Court briefApr 22, 2021

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APPENDIX

Volume II

TABLE OF CONTENTS

Volume I

Appendix A:

Court of Appeals of the State

of New York decision, dated

November 23, 2020. ......... 1a-82a

Majority opinion ............ [1a-22a]

Judge Rivera’s dissent . [23a-53a]

Judge Wilson’s dissent [54a-81a]

Appendix B:

Supreme Court of the State

of New York, Appellate Division,

Second Department opinion,

dated May 6, 2020. .......... 83a-86a

Appendix C:

Trial court ruling. ........... 87a-92a

Appendix D:

Court of Appeals denial of

reargument, dated April 1, 2021

(excerpted). ...................... 93a-94a

Appendix E:

Statutory provisions involved.

......................................... 95a-98a

Volume II

Appendix F:

Additional materials. .... 99a-177a

People ex rel. Bonilla v. Superintendent, No. 2020/51174 (Sup.

Ct. Dutchess Co. June 25, 2020)

(oral ruling) ................ [99a-107a]

Original writ filings (excerpted)

.................................. [108a-177a]

99a

APPENDIX F

101

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF DUTCHESS : CIVIL TERM

- - - - - - - - - - - - - - - - - - - - X

The People of the State of New York,

ex rel. Luis Bonilla, DIN# 16A2855,

NYSID# 08547635Y,

Petitioner,

-against-

Superintendent, Fishkill Correctional

Facility; New York State Department of

Corrections and Community Supervision,

Respondents.

Dutchess County Courthouse

10 Market Street

Poughkeepsie, New York 12601

June 25, 2020

INDEX NO.

2020/51174

- - - - - - - - - - - - - - - - - - - - X

WRIT OF

HABEAS CORPUS

BEFORE:

HONORABLE CHRISTIE J. ACKER

Justice of the Supreme Court

APPEARANCES:

THE LEGAL AID SOCIETY

CRIMINAL APPEALS BUREAU

Attorneys for Petitioner

199 Water Street

New York, New York 10038

BY: PAULINE SYRNIK, ESQ.

and

ANDREA YACKA-BIBLE, ESQ.

LETITIA JAMES

ATTORNEY GENERAL OF THE STATE OF NEW YORK

Attorneys for Respondents

One Civic Center Plaza, Suite 401

Poughkeepsie, New York 12601

BY: HEATHER RUBINSTEIN, ESQ.

Jennifer DeCelestino

Senior Court Reporter

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- PROCEEDINGS -

Again, your Honor, this case is solely about

one individual, Mr. Bonilla.

need to decide anything regarding the faith of the

agreement between DHS and DOCCS.

not before the Court today.

order DOCCS to release Mr. Bonilla to an intake

office where DHS has confirmed a SARA compliant bed

would be given to him.

Thank you so much.

THE COURT:

Okay.

Your Honor does not

That question is

We ask your Honor to

Thank you, everybody.

It's 2:37, 2:36.

I'm going to take about 15 minutes,

and my hope is to be able to issue a decision on the

record at about 2:50 to 2:55.

Okay.

(Whereupon, a recess was taken.)

THE COURT:

Thank you.

This shall constitute the

decision and order of this Court.

Petitioner Luis Bonilla commenced this habeas

corpus proceeding seeking to be immediately released

from Fishkill Correctional Facility, where he is

currently being housed in what has been designated a

residential treatment facility or "RTF".

2016, Petitioner was convicted and sentenced to a

four-year determinant term as well as five years of

post-release supervision.

In April of

Because Petitioner had

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- PROCEEDINGS -

been designated a Level 2 sex offender and his crime

was committed against a minor, he is subject to the

residency requirements of Executive Law 259-c(14),

otherwise known as the Sexual Assault Reform Act or

SARA.

must reside at an address that is more than 1,000

feet from school grounds.

As a result of this, upon release, Petitioner

The writ alleges that because Petitioner is

indigent and cannot afford SARA compliant housing, he

is completely reliant upon the New York City shelter

system.

to a New York City shelter operated by the Department

of Homelessness Services, also known as DHS in this

decision, when he reached his maximum expiration

date, Respondent DOCCS transferred Petitioner to

Fishkill's RTF.

reached the maximum expiration date for his

determinate sentence on August 10th, 2019, over 10

months ago, and he remains at Fishkill RTF.

He maintains that instead of releasing him

It is uncontested that Petitioner

By decision dated June 9th, 2020, I scheduled

a hearing to determine whether Petitioner can be

immediately released to a New York City DHS shelter.

The hearing commenced on June 24th, 2020 and

continued to today, June 25th, 2020.

presented two witnesses, Yvonne Tinsley-Ballard and

Petitioner

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- PROCEEDINGS -

Deborah Diamant.

Ms. Tinsley-Ballard is an associate

commissioner for New York City DHS and she oversees

shelter operations.

Callahan Consent Decree which she described as

mandating DHS to provide shelter to anyone who

requests it.

predates SARA, she testified that the decree requires

DHS to find shelter for SARA restricted individuals

as well.

if a person who required SARA compliant housing

presented to a DHS shelter, DHS cannot deny them and

must find them a SARA compliant bed.

clearly stated that DHS will find SARA compliant beds

for these individuals even if there were no

vacancies.

is an agreement between DHS and DOCCS, where DHS

reserves 10 SARA compliant beds per month for inmates

being released by DOCCS.

She testified about the 1981

Although the Callahan Consent Decree

In fact, Ms. Tinsley-Ballard testified that

Notably, she

Her testimony also established that there

Petitioner also called Deborah Diamant, who

is a Director of Government Relations and Legal

Affairs for the Coalition of the Homeless.

coalition is a not for profit that is, as relevant

herein, the Court appointed monitor of single adult

homeless shelters in New York City based upon the

The

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- PROCEEDINGS -

Callahan Consent Decree.

cumulative of Ms. Tinsley-Ballard's, and she also

confirmed that the Callahan Consent Decree mandates

that DHS find SARA compliant housing for those who

present at the shelter seeking such housing.

further testified as to the vacancies and available

beds indicating that only one period in the last two

weeks where there were no vacant beds.

Her testimony was largely

She had

Respondent called one witness, Stacey Dorsey,

the Reentry Manager for DOCCS for Manhattan and

Staten Island as well as the DOCCS/DHS liaison.

Among other duties, Mr. Dorsey is responsible for

placing every DOCCS releasee with SARA restrictions

who seeks housing with DHS.

the agreement between DOCCS and DHS where 10 SARA

restricted persons are chosen by DOCCS per month and

sent to DHS.

individuals are chosen from the RTF and held past

lists maintained by DOCCS.

list who have been held the longest past their

maximum expiration date or CR, which I believe is

conditional release date, are the ones chosen each

month to be brought to DHS, and to be clear, I know

that the CR date is for the held past list, the

maximum expiration is for the RTF list.

She also testified about

According to Ms. Dorsey, these

Those individuals on said

There was no

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- PROCEEDINGS -

evidence presented whether the agreements between DHS

and DOCCS is a written one, when such agreement

began, or whether the terms of the agreement have

changed since its inception.

that DOCCS is prohibited from bringing more than 10

individuals per month to DHS.

There was no testimony

After hearing the testimony, the Court finds

that all witnesses were credible, mutual and very

competent.

doing their best to comply with the law.

also note that I am only deciding this writ by

Mr. Bonilla.

were, my decision may well be different.

am determining that DHS is not a necessary party as I

am not ordering DHS to do anything.

established that if he was brought to DHS, DHS will

find him SARA compliant housing.

not provided this Court with any evidence to the

contrary, nor have they established that DHS shelter

housing would be noncompliant with Petitioner's

post-release restrictions.

are focused more on the convenience of DOCCS and DHS

and their concern about Petitioner leap-frogging

ahead of others, which is irrelevant in this habeas

corpus proceeding for Mr. Bonilla.

I have no doubt that DOCCS and DHS are

However, I

This is not a class action, and if it

Further, I

Petitioner has

Respondents have

Respondents' arguments

As Respondent

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- PROCEEDINGS -

routinely brings SARA restricted releasees to DHS, it

is obvious that DHS maintains SARA housing which has

been found acceptable by Respondent.

concern that Petitioner may not provide correct

information regarding his SARA status at intake to

DHS, Respondent can process Petitioner and

communicate with DHS in the same manner as it does

with the 10 releasees that are brought to DHS each

month.

Respondents are either irrelevant to this particular

writ or the Court can address those concerns by way

of this order.

intended to track the procedures already in place for

releasees from DOCCS to DHS.

As for any

In sum, all of the concerns raised by

Indeed, the terms of this order are

Accordingly, Petitioner has established that

SARA compliant housing is available to him.

Petitioner has demonstrated by a preponderance of the

evidence that he is entitled to immediate release to

a DHS shelter and his Petition is granted to this

extent.

accordance with the agreement that they have in place

with DHS so that the Petitioner may be discharged on

or before July 1st, 2020.

Petitioner, transport him and provide DHS with all

information about Petitioner as it would normally

Respondent shall process Petitioner in

Respondent shall discharge

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- PROCEEDINGS -

proceed pursuant to its agreement.

submit an order on notice in conformity with this

decision.

As I indicated, this shall constitute the

Petitioner must

decision and order of this Court.

Before we close, is there anything further?

MS. SYRNIK:

Your Honor, I would just like to

note if it would be possible to e-mail us an

e-certified copy of the decision to us and to

Respondents and to DOCCS so that they are able to as

quickly as possible process the paperwork for his

release?

THE COURT:

You can -- the intention is that

this Court's decision was done on the record.

So,

when you submit the order, you can state for the

decision stated on the record, and you can order a

copy of the transcript from the Court Reporter.

MS. SYRNIK:

Thank you so much, your Honor.

THE COURT:

Okay.

Is there anything else

before we close?

You're muted, Heather.

MS. RUBINSTEIN:

Respondents, your Honor.

THE COURT:

very much.

Thank you for the

Thank you.

I want to thank the attorneys

I appreciate that it is not easy to do

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- PROCEEDINGS -

this kind of hearing remotely.

I want to express my

deep gratitude to Jennifer, the Court Reporter, and

thank you for making my job easy in terms of

proceeding on this hearing.

So, I hope everybody has a nice weekend.

would like you to submit an order on notice to

Mr. Rubinstein, and you can upload it, and if there

are any comments, of course, Mr. Rubinstein, please

let us know right away regarding any objections to

the proposed order.

I can so order the transcript, and whoever

pays for it, you can work that out, or whoever is

ordering it is paying for it.

MS. SYRNIK:

Dated:

Okay?

Thank you, your Honor.

___________

So Ordered:

_____________________

Hon. Christi J. Acker

Justice Supreme Court

This is to certify that the foregoing is

an accurate transcription of my stenographic

notes as transcribed by me.

____________________________

JENNIFER DECELESTINO

108a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

20RIBINAL

The People of the State of New York ex. reL

ANGEL ORTIZ,

DIN # 08-A-4974 & NYSID # 05394060J,

Petitioner,

WRIT OF

HABEAS CORPUS

Index No. i t 3 -.1-1DI C.)

- against DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

Respondents.

TO: SUPERINTENDENT BRESLIN, Queensboro Correctional Facility

YOU ARE HEREBY commanded to produce the body of Angel Ortiz, who

is by you imprisoned and detained, together with the time and cause of such

imprisonment, before a Justice of the Supreme Court, Queens County, at the

Courthouse thereof, at 9:30 a.m. on the at day of 314,-7, 2018, for the Court to

inquire into and determine the legality of Mr. Ortiz's confirmed detention.

WITNESS, Hon. Semi & Leirewl, one of the Justices of said Court on

the 2-5- day of Cs-m-te, 2018.

SEYMOUR W. JAy

S, JR.

Will A. Page, Of Counsel

The Legal Aid Society, Criminal Appeals Bureau

199 Water Street, New York, New York 10038

The within writ is hereby allowed this 2.-5- day of

SUPREME

A019

2018.

•URT JUSTICE

JOHN B. LATELLA

109a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

The People of the State of New York ex. rel.

ANGEL ORTIZ,

DIN 08-A-4974 & NYSID # 05394060J,

Petitioner,

- against DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

PETITION FOR A

WRIT OF

HABEAS CORPUS

S.P.

113-2018

------Index No. _________

Respondents.

STATE OF NEW YORK

COUNTY OF NEW YORK

ss.:

WILL A. PAGE, Esq., of counsel to SEYMOUR W. JAMES, JR., Esq. and

The Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, New York,

New York 10038, represents petitioner, Mr. Angel Ortiz, in this petition for a writ

of habeas corpus pursuant to Article 70 of the C.P.L.R. This petition is submitted

on Mr. Ortiz’s behalf, see C.P.L.R. § 7002(a), because he is illegally imprisoned

and restrained in his liberty in the county where this petition has been filed, and

any further delay will cause him additional material injury.

As his attorney and pursuant to C.P.L.R. §§ 2106 & 7002(c), I set forth the

following pertinent factual allegations, which are within my knowledge or are

based upon information and belief, along with the enclosed affirmation in support

of the writ:

A020

110a

In June 2008, petitioner pleaded guilty to one count of robbery in the first

degree, P.L. § 160.15(3), and one count of attempted sexual abuse in the first

degree, P.L. §§ 110.00 and 130.65(1).

He was sentenced to a determinate term of imprisonment of 10 years

followed by 5 years of post-release supervision (“PRS”). No one ever

informed Mr. Ortiz that the State would attempt to treat his 10- and 5-year

distinct terms as one bulk term of imprisonment.

Petitioner was subsequently adjudicated a Level III under the Sex Offender

Registration Act (“SORA”) registration scheme with respect to that offense.

This petition seeks Mr. Ortiz’s immediate release given respondents’

ongoing failure to release him following the “maximum expiration” date

(“ME date”) of his sentence of incarceration, which was March 4, 2018.

Petitioner is currently incarcerated at the Queensboro Correctional Facility

(“Queensboro” or “the facility”) by respondent Superintendent BRESLIN.

The facility is located at 47-04 Van Dam Street, Long Island City, NY

11101-3081, which is in Queens County.

Respondents are illegally detaining Mr. Ortiz—and have done so since his

“conditional release” date (“CR date”) of September 28, 2016—because, in

their view, they are entitled to hold him indefinitely, or at least until his term

of PRS expires.

Indeed, respondents first illegally detained him in prison between his earned

CR date and his ME date, and now continue that detention at an alleged

Residential Treatment Facility (“RTF”) in prison-like conditions during

what should be his term of PRS. And, by ignoring his CR date and failing to

credit that time, they have unilaterally extended his PRS from 2021 to 2023.

A021

111a

Respondents justify this ongoing detention by claiming that petitioner’s

Level III designation, combined with his period of PRS, subject him to the

residency restrictions of the Sexual Assault Reform Act (“SARA”). Thus,

because Mr. Ortiz does not have SARA-compliant housing available to him,

respondents will not release him.

10.

Mr. Ortiz recognizes that, pursuant to the Correction Law § 73(10),

respondents could use an RTF as a “residence” for him, now that he has

served his term of incarceration. But respondents are using Queensboro,

designated by DOCCS as an RTF, as another prison, not as a residence.

11.

At Queensboro, Mr. Ortiz is not free to come and go, to begin his

reintegration into the community, to begin rebuilding his life, or to interact

with his family. He has received no treatment during his illegal detention;

he has no access to programs; and, he is prohibited from seeing his daughter.

12.

Petitioner, therefore, remains unlawfully confined at the facility because

respondents will not release him into the community for his period of postrelease community supervision.

13.

No previous writs have been filed seeking the relief requested herein, and no

federal court or judge has exclusive jurisdiction over this controversy.

14.

A notice of appeal has been filed with regard to the SORA adjudication that

resulted in Mr. Ortiz’s Level III designation, but that appeal has not been

perfected at this time.

15.

Petitioner’s ongoing illegal detention is unjustifiable, given that respondents

have ignored two mandated release dates: first, Mr. Ortiz’s CR date of

September 28, 2016; and second, his ME date of March 4, 2018.

16.

In total, his liberty has been unconstitutionally restricted for over 19 months.

A022

112a

Grounds for Petition

17.

Petitioner seeks a writ of habeas corpus on the grounds that:

a. applying SARA’s housing restrictions to keep him in custody beyond

his ME date, in a purported RTF under conditions amounting to

imprisonment, violates due process by infringing on his fundamental

liberty rights, U.S. Const. amend. XIV; N.Y. Const. art. I, § 6;

b. his continued confinement past his maximum prison sentence

constitutes cruel and unusual punishment, U.S. Const. amend. VIII;

N.Y. Const. art. I, § 5; and

c. the statutory language makes clear that SARA does not apply to

persons serving post-release supervision after completing their

maximum prison term, only to persons on early release via parole or

conditional discharge, and, even if it did, the RTF where he is

confined does not satisfy the statutory requirements for an RTF.

Relief Requested

WHEREFORE, for the reasons stated above, provided in the attached

Affirmation in Support, and argued in the attached Memorandum of Law, it is

respectfully requested that this Court (a) consider the issue of petitioner’s illegal

detention as quickly as practicable to avoid Mr. Ortiz incurring any additional

harm, (b) issue a writ of habeas corpus, directed to the respondents, for the purpose

of inquiring into the legality of petitioner’s continued detention and, ultimately,

directing his release from the custody of the respondent Superintendent BRESLIN,

and (c) grant petitioner such other and further relief which may be just and proper.

A023

113a

Dated:

New York, New York

June H , 2018

ILL A. PAGE

The Legal Aid Society

Of Counsel

A024

114a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

The People of the State of New York ex. rel.

ANGEL ORTIZ,

DIN 08-A-4974 & NYSID # 05394060J,

Petitioner,

- against DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

AFFIRMATION

IN SUPPORT OF A

WRIT OF

HABEAS CORPUS

S.P.

113-2018

-------Index No. _________

Respondents.

STATE OF NEW YORK

COUNTY OF NEW YORK

ss.:

WILL A. PAGE, Esq., an attorney duly admitted to the practice of law in this State

and not a party to the instant action, does hereby subscribe and affirm under

penalty of perjury the following to be true pursuant to C.P.L.R. § 2106:

I am of counsel to SEYMOUR W. JAMES, JR., Esq., The Legal Aid

Society, Criminal Appeals Bureau, the attorney of record herein.

I have read the foregoing petition and the following affirmation and know

their contents. The contents of the petition and affirmation are true to my

knowledge, except as to matters alleged to be upon information and belief,

and as to those matters, I believe them to be true.

A025

115a

The sources of information upon which I have based those beliefs are

conversations had with petitioner, documents prepared by the New York

State Department of Corrections and Community Supervision, and other

attached documents.

Included with this affirmation are what I believe to be true and correct

copies of the following exhibits:

Exhibit A: CRIMS Report & Parole Documentation

Exhibit B: Minutes from SORA Proceeding

Exhibit C: Photos of “H.” & Proof of Custody

Exhibit D: Inmate Locator Report

Exhibit E:

DOCCS Directive (Queensboro Facility)

Exhibit F:

Areas Off-limits Due to SARA

Exhibit G: Matter of Luis Rodriguez v. Tina Stanford, N.Y. Bd. of

Parole, No. 2017/0773 (Sup. Ct. Jefferson Co. July 27,

2017) (Respondent’s Affirmation)

Exhibit H: People ex rel. Scarberry, No. 3963/2014 (Sup. Ct.

Dutchess Co. Nov. 21, 2014) (Decision/Order)

Exhibit I:

People ex rel. Joe, No. 7985/2014 (Sup. Ct. Columbia

Co. Oct. 30, 2014) (Decision/Order)

I make this writ and accompanying submissions on petitioner’s behalf

because he is incarcerated outside the county in which my office is located.

To the extent the Court seeks additional evidence on the allegations made

herein, petitioner requests to be present at a hearing where such evidence

and testimony can be introduced.

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116a

Background & Relevant History

Petitioner is almost 50 years old. He grew up in Manhattan, with his mother,

and has lived in New York City for most of his life. He has an 11-year-old

daughter, referred to herein as “H.”

Mr. Ortiz and his mother share custody over and are jointly responsible for

H., who was born shortly before petitioner began serving his prison sentence

for the underlying offense. (See Exh. C [Photos of H. & Proof of Custody].)

During his ten years of incarceration, Mr. Ortiz has been able to develop and

to maintain a meaningful relationship with H., through letters, phone calls,

and prison visits. It is his sincere wish to return to the community so that he

may provide for his daughter and support her in every way possible as she

enters adolescence.

10.

In 1994, when Mr. Ortiz was in his mid-20s, he was convicted of attempted

sodomy in the first degree. For that offense, he was designated a Risk Level

II under SORA upon his release from prison in 2001.

11.

During his re-entry, Mr. Ortiz did his best to apply himself. He ultimately

achieved full-time employment, both in the culinary and commercial

transport fields, and entered into an adult relationship.

12.

But, in 2008, Mr. Ortiz relapsed into addiction. He was accused of sexually

threating a pizza delivery man during the course of a robbery designed to

secure money in order to obtain drugs. On June 12, 2008, he pleaded guilty

to one count of robbery in the first degree, P.L. § 160.15(3), and one count

of attempted sexual abuse in the first degree, P.L. §§ 110.00 and 130.65(1).

13.

H e was sentenced to a determinate term of imprisonment of 10 years

followed by 5 years of post-release supervision.

A027

117a

14.

On March 4, 2018, he completed serving the determinate 10-year prison

term. (See Exh. A [CRIMS Report & Parole Documentation].)

Prison Record for Current Term of Incarceration

15.

Petitioner’s record while incarcerated demonstrates his commitment to

rehabilitation. Not only did he complete an aggression replacement training,

but he took part in alcohol and substance abuse treatment. While petitioner

has struggled with substance abuse in the past, he has remained sober since

the underlying offense in this case, which took place in 2008.

16.

Moreover, and particularly relevant to the circumstances of his continued

confinement, he successfully completed sex offender treatment in September

2015. Through treatment, he learned about his “power and control issues”

and how to prevent reoffending behavior. (See Exh. B, at 17-21 [Minutes

from SORA Proceeding].)

17.

Petitioner also has a very good disciplinary record. During his 10 years in

prison, he received just two tickets, both for minor, Tier II infractions. (See

Exh. B, at 13 [Inmate Disciplinary History].)

18.

Based on his strong record in prison, he earned good time credit and was

entitled to early, conditional release in September 2016. (See Exh. A [Parole

Documentation (Time Allowance Review)].)

SORA Hearing for Current Offense

19.

At a SORA hearing on October 11, 2016 (which took place after Mr. Ortiz’s

conditional release date of September 28), petitioner was adjudicated a Risk

Level III, or a high risk for re-offense.

A028

118a

20.

That determination was made in spite of Mr. Ortiz’s acceptance of

responsibility for his actions, strong record of rehabilitation, and the other

factors cited by his counsel at the hearing. Specifically, counsel warned that

adjudicating Mr. Ortiz a Level III would result in his incarceration being

extended—i.e., a further punishment, contrary to the accepted rationale that

SORA is regulatory, not punitive. (See Exh. B, at 15-17 [minutes].)

21.

As predicted by counsel, Mr. Ortiz was detained well-beyond his conditional

release date and remains incarcerated today.

Custody Conditions

22.

Petitioner reached his ME date on March 4, 2018, but even after fully

serving his entire prison term, he was not released into the community.

Fishkill RTF

23.

Instead, on February 23, 2018, two weeks shy of his ME date, he was

transferred to Fishkill Correctional Facility (“Fishkill”), designated by

DOCCS as an RTF.

24.

Not only has petitioner’s transfer into the RTF system resulted in extending

his period of incarceration, but it has also isolated him from his family.

25.

His daughter, who visited him before his move to Fishkill, was informed by

DOCCS that she cannot visit him so long as he is confined in an RTF,

because minors are not allowed inside RTFs.

26.

Further, his living conditions at Fishkill were no different than the prison in

which he was incarcerated prior to his transfer.

A029

119a

27.

When he arrived at Fishkill, he was given an orientation about the RTF

program, but was not placed in the RTF Unit.

28.

Upon information and belief, actual RTF programs are overcrowded and

underfunded. And, the RTF Unit at Fishkill is no exception.

29.

Because the RTF was full, Mr. Ortiz was placed on the waiting list.

30.

The special housing unit for the RTF at Fishkill is Unit 12-1, but petitioner

was housed in Unit 2. That unit is a general population unit for inmates who

are serving regular prison terms.

31.

There, everyone has a cubicle with a bed. There is a day room with a

television, and petitioner had access to a library. But there was no treatment

or job training provided.

32.

In fact, it was not until seven weeks after his transfer that he was enrolled in

RTF required therapeutic programming.

But his enrollment in the

programming was short lived (only four days).

Queensboro RTF

33.

On April 20, 2018, petitioner was sent to Queensboro, where he remains to

this day. (See Exh. D [Inmate Locator].)

34.

The conditions at Queensboro are no better than at Fishkill.

35.

At Queensboro, Mr. Ortiz is assigned to Unit 5-North, which houses the

general population of the prison. Within the unit, there is an area next to the

“police bubble” (a centralized observation area from which correction

officers keep an eye on inmates and their activities) where Mr. Ortiz and

about 20 others in the RTF program are housed together.

A030

120a

36.

This area is not separated from the rest of Unit 5-North in any way. Rather,

it is a part of the larger dormitory-style unit.

37.

There, Mr. Ortiz and the others sleep on bunks beds identical to those in the

rest of the unit. They also have one gray locker each, just like the rest of the

general prison population.

38.

He and his fellow detainees are referred to as “inmates” by the corrections

officers at the facility.

39.

Mr. Ortiz has his meals in the mess hall with the general prison population.

He uses the same bathrooms, showers, and recreation room as the rest of the

prison population. He is subject to the same inmate count and random

searches as the inmates in the general prison population.

40.

Indeed, Mr. Ortiz has the same privileges, including phone, mail, and

packages, as the regularly incarcerated inmates in the general population.

41.

Unlike the general population inmates, however, Mr. Ortiz and others

warehoused in the RTF program may be selected to leave the Queensboro

Facility for several hours to work. Queensboro is, in fact, styled as a workrelease facility. (See Exh. E [Queensboro Directive].)

42.

Mr. Ortiz, however, has only been chosen for that work a handful of times.

43.

When he or other inmates leave Queensboro on “work release,” the

participants spend the day unloading trucks for a nearby police facility.

They are accompanied, at all times, by armed corrections officers.

44.

Otherwise, he and the other RTF inmates spend their days cleaning the

grounds at Queensboro: sweeping, mopping, and collecting trash. In this

work, they are also accompanied, at all times, by corrections officers.

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45.

They are paid $10 per day.

46.

Mr. Ortiz does not have access to any treatment or programs that would

prepare him for his release into the community.

47.

Corrections officers have informed Mr. Ortiz and the other RTF detainees

that if they refuse to comply with orders or voice their dissatisfaction with

the lack of treatment provided, they will receive a Tier III ticket, be sent

back to Fishkill, and be placed at the bottom of the list for release.

48.

In short, no therapeutic programming is provided, and petitioner is under

constant threat of extended incarceration.

49.

Having the rare opportunity to participate in off-site work is the only thing

that distinguishes Mr. Ortiz from the general prison population. But in

contrast to the regular population, Mr. Ortiz is not allowed to visit with his

daughter because he is housed in the RTF.

50.

Nevertheless, petitioner has been told by DOCCS officials that he and others

like him who are being held at Queensboro past their ME dates are actually

on parole. He has even met with a Manhattan-based parole officer.

51.

Yet Petitioner has none of the freedom associated with post-release

supervision or parole and is not receiving any RTF-appropriate treatment.

52.

Moreover, he is subject to the prison disciplinary system, rather than

receiving the due process protections that would accompany alleged

violations of parole.

53.

With the exception of the off-site work assignments, Mr. Ortiz is not

permitted to leave the facility. And when he does leave the facility, he is

accompanied by corrections officers at all times.

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54.

Simply put, his term of PRS has been converted into incarceration.

55.

Queensboro RTF is not Mr. Ortiz's "residence"—it is his prison.

56.

While Mr. Ortiz would certainly welcome having a home, residence, or

shelter that he could reside in during his re-entry into the community, he

would rather be homeless, i.e., transient or living on the street, than have to

remain incarcerated.

57.

At least then, in his words, the "endless nightmare" would finally be over.

Dated:

New York, New York

2018

June

ill ,

•

W LL A. PAGE

The Legal Aid Soc ety

Of Counsel

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

The People of the State of New York ex. rel.

ANGEL ORTIZ,

DIN 08-A-4974 & NYSID # 05394060J,

Petitioner,

- against DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

Respondents.

MEMORANDUM OF LAW

IN SUPPORT OF

PETITION FOR A

WRIT OF HABEAS CORPUS

Petitioner Angel Ortiz completed his maximum, 10-year term of

incarceration on March 4, 2018, yet he remains in custody. Respondents—the

New York State Department of Corrections and Community Supervision

(“DOCCS”) and the Superintendent of Queensboro Correctional Facility—are

continuing to hold him in de facto prison conditions rather than releasing him to

the community for his term of post-release supervision (“PRS”) despite the fact

that he has fully-served his prison sentence.

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Respondents have extended petitioner’s confinement for one reason: he has

not accomplished the nearly impossible task of obtaining New York City housing

that is compliant with the Sexual Assault Reform Act (“SARA”), i.e., housing that

is not within 1,000 feet of a school or child care facility. Indeed, respondents kept

petitioner in prison for an extra year and a half between his earned Conditional

Release (“CR”) date and his Maximum Expiration (“ME”) date for the same

reason. During that time, they did little to nothing to help him find housing. Their

decision to further detain petitioner, at this point for three months past his ME date,

without a hearing violates procedural due process.

But more importantly,

confining petitioner in a Residential Treatment Facility (“RTF”) that functions as a

prison rather than a treatment center or residence, even though SARA does not

apply to individuals serving PRS (see infra Point III), violates his substantive due

process rights (see infra Point I) and constitutes cruel and unusual punishment (see

infra Point II). U.S. Const. amends. XIV, VIII; N.Y. Const. art. I, §§ 5, 6.

Therefore, the writ should be issued and petitioner released.

FACTS ALLEGED

The facts set forth in the accompanying petition and affirmation in support

of the petition are hereby incorporated in their entirety.

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ARGUMENT

Petitioner’s Confinement in the RTF vis-à-vis SARA

Violates Substantive Due Process by Depriving Him of

His Fundamental Liberty, Specifically His Right to Serve

His Term of Post-Release Supervision in the Community.

Petitioner’s incarceration was the result of his 2008 conviction, and the

sentence he received at that time is the one and only source for determining the

length of his punishment. After all, “it is well settled that a jailor’s authority to

confine a prisoner begins and ends with the sentence pronounced by the judge.”

Francis v. Fiacco, No. 15 Civ. 901 (MAD/ATB), 2018 WL 1384499, at *18

(N.D.N.Y. Mar. 16, 2018); see Vitek v. Jones, 445 U.S. 480, 493 (1980) (“a valid

criminal conviction and prison sentence extinguish a defendant’s right to freedom

from confinement”).

A determinate sentence, such as the one imposed on

petitioner, is comprised of two distinct components: a specific period of

imprisonment, and a specific period of post-release supervision. P.L. § 70.45(1).

The Penal Law mandates release to community supervision at the end of the

imposed term of imprisonment, i.e., at the ME date. Donnino, Supplementary

Practice Commentary, P.L. § 70.45.

Yet, despite reaching his ME date and

completing his 10-year term of incarceration on March 4, 2018, respondents have

not released petitioner from confinement.

Although it is true that “[a]s long as the conditions or degree of confinement

to which [a] prisoner is subjected is within the sentence imposed,” the liberty

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interests protected by due process are not implicated, Montanye v. Haymes, 427

U.S. 236, 242 (1976) (emphasis added), where the State chooses to unilaterally

extend a term of incarceration by converting PRS into additional prison time, the

protections of due process apply with full force. Indeed, it is a longstanding

common-law principle that “a prisoner has a right to serve his sentence

continuously and in a timely manner, and to resettle after he has served his

sentence without the fear that the government . . . will reincarcerate him,” or

illegally detain him, after he completes his sentence. Vega v. United States, 493

F.3d 310, 318 (3d Cir. 2007) (discussing this common-law doctrine when

considering whether to provide credit against a term of incarceration for time spent

at liberty resulting from a mistaken release). Once his term of imprisonment is

complete, “a prisoner should have his chance to re-establish himself and live down

his past.” White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930); see also Dunne v.

Keohane, 14 F.3d 335, 336 (7th Cir. 1994) (“[t]he government is not permitted to

delay the expiration of the sentence”).

This principle—that one should be released upon the completion of his or

her term of incarceration without fear of re-incarceration—is deeply-rooted in our

criminal justice system. Every day, countless defendants in New York City accept

a sentence of “time served” in exchange for a guilty plea based on the

understanding by all parties that the plea entitles them to immediate release

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because of the time they have already spent in jail. Put simply, it would be

unconscionable to accept such a plea without ensuring that the defendant is aware

of exactly the potential incarceration—and supervision—associated with that plea.

See Ex parte Eldridge, 106 P. 980, 981 (Okla. 1910) (“The essential part of the

judgment is the punishment, and the amount thereof”). That is why the Court of

Appeals requires the vacatur of pleas where a defendant is never informed that

PRS will accompany an agreed-to sentence. People v. Estremera, 30 N.Y.3d 268,

270 (2017) (citing People v. Catu, 4 N.Y.3d 242, 245 (2005)).

Against this backdrop, it should not be controversial to expect that once

petitioner served his full prison term he was entitled to release. Mr. Ortiz pleaded

guilty and accepted a determinate sentence comprised of prison time and a period

of supervision in the community. Given the clear distinction between a term of

imprisonment and a term of PRS, when he completed the former, he was entitled to

begin the latter.

Respondents, however, have effectively merged his term of

incarceration with his term of post-release supervision,1 ignoring that they are

without the authority to do so and that such a merger is unconstitutional. Due

process and fundamental fairness mandate petitioner’s release into the community

so that he may begin serving his period of supervision in a timely manner.

If a guilty plea to a 10-year determinate sentence followed by 5 years of post-release

supervision simply means up to 15 years of potential prison time, then defendants should be so

advised prior to entering guilty pleas.

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A. Petitioner has a protected liberty interest in serving his term of

PRS in the community rather than behind bars.

Respondent’s conversion of petitioner’s term of post-release supervision

into ongoing incarceration is, undeniably, a substantial infringement on his

fundamental liberty rights. “[T]he Due Process Clause contains a substantive

component that bars arbitrary, wrongful government actions” that impinge on

protected liberty interests “‘regardless of the fairness of the procedures used to

implement them.’” Zinermon v. Burch, 494 U.S. 113, 125 (1990); see U.S. v.

Salerno, 481 U.S. 739, 746 (1987).

Indeed, “commitment for any purpose

constitutes a significant deprivation of liberty that requires due process protection.”

Jones v. U.S., 463 U.S. 354, 361 (1983) (internal quotation marks omitted). Courts

are careful not to “minimize the importance and fundamental nature” of the

individual’s right to liberty, Salerno, 481 U.S. at 750, even where his or her liberty

interest is less extensive than that enjoyed by someone who has never been

convicted of a crime and is not subject to a prison sentence.

As relevant here, an individual who has reached his or her ME date has the

same fundamental liberty interest as a parolee. Victory v. Pataki, 814 F.3d 47, 60

(2d Cir. 2016); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Although the

imposition of “[p]ostrelease supervision is significant,” Catu, 4 N.Y.3d at 245, just

like a parolee, petitioner has a fundamental liberty interest in being free from

conditions resembling confinement during his term of PRS:

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Th[at] liberty . . . enables him to do a wide range of

things open to persons who have never been convicted of

any crime. . . . Subject to the conditions of his parole, he

can be gainfully employed and is free to be with family

and friends and to form the other enduring attachments of

normal life. Though the State properly subjects him to

many restrictions not applicable to other citizens,

his condition is very different from that of confinement

in a prison.

Morrissey, 408 U.S. at 481-82 (emphasis added); see also In re Taylor, 343 P.3d

867, 879 (Cal. 2015) (“The parolee is not incarcerated; he is not subjected to a

prison regimen [or] to the rigors of prison life . . . . The parolee lives among people

who are free to come and go when and as they wish. Except for the conditions of

parole, he is one of them.”).

As petitioner has reached the ME date of the confinement portion of his

determinate sentence, he has a liberty interest, protected by due process, in being

released to post-release supervision.

B. Respondents are infringing on that liberty interest by holding

petitioner at the RTF and extending his term of confinement.

Respondent DOCCS is improperly using SARA to keep petitioner (and

many others) from enjoying that liberty. Under SARA, Executive Law § 259c(14), a person under supervision for a sex offense cannot be within 1,000 feet of a

school (or other child care-related facility) if he or she is designated a Risk

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Level III under SORA or if the complainant was under the age of 18.2 The stated

purpose of these restrictions, which courts have interpreted to be residency

restrictions,3 is to protect children from sexual predators. Devine v. Annucci, 150

A.D.3d 1104, 1106 (2d Dep’t 2017). The restrictions are so broad, however, as to

make most of New York City off-limits to those subject to them. (See Exh. F (map

of off-limit areas)); see also In the Matter of Berlin v. Evans, 31 Misc. 3d 919

(Sup. Ct. N.Y. Co. 2011) (the 77-year-old petitioner was barred from most parts of

New York City, and the court found application of SARA to him violated the ex

post facto clause), appeal taken but dismissed, 103 A.D.3d 405 (1st Dep’t 2013)

(due to petitioner’s death).

The chance that a sex offender subject to SARA will find a suitable

apartment in New York City not within 1,000 feet of a school is “probably nonexistent.” People v. McFarland, 35 Misc. 3d 1243(A) (Sup. Ct. N.Y. Co. 2012),

rev’d on other grounds, 120 A.D.3d 1121 (1st Dep’t 2014). Given this housing

Executive Law § 259-c(14) provides: “where a person serving a sentence for an offense

defined in article [130], [135] or [263] of the penal law or section 255.25, 255.26 or 255.27 of

the penal law” against a minor “or such person has been designated a level three . . . pursuant to

[168-l(6)] of the correction law, is released on parole or conditionally released . . ., the board

shall require, as a mandatory condition of such release, that such sentenced offender shall refrain

from knowingly entering into or upon any school grounds, as that term is defined in [P.L.

§ 220.00(14)], or any other facility or institution primarily used for the care or treatment of

persons under the age of eighteen . . . .” (emphasis added).

“Courts have interpreted [SARA’s provisions] as creating a residency restriction prohibiting

certain classes of sex offenders from living within 1,000 feet of a school.” People v. Diack, 24

N.Y.3d 674, 682 (2015).

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shortage, respondents turn to Penal Law § 70.45 to justify extending petitioner’s

term of incarceration by warehousing him and many others in so-called RTFs.

Under Penal Law § 70.45, the board of parole is authorized to impose, as a

condition of PRS, that an individual be transferred to an RTF for a period not

exceeding six months. Id. § 70.45(3). The statute makes clear, however, that the

time spent at the RTF cannot amount to confinement. Id. (during that time, the

individual would “participate in the programs of [the] facility”). More specifically,

Correction Law § 73(10) provides that DOCCS may use an RTF “as a residence

for persons who are on community supervision.” (emphasis added); see also Corr.

L. § 2(31) (defining the broad term “community supervision” to encompass all

forms of release, including “temporary release, presumptive release, parole,

conditional release, post-release supervision or medical parole”).

Therefore,

consistent with the statutory language, due process, and an individual’s

fundamental liberty interest in being free from confinement, the additional six

months may be spent in an RTF only if it is used as a residence and if rehabilitative

programming is provided.

While respondent DOCCS may claim that petitioner has been transferred to

an RTF and is serving only six months of PRS there, the reality is that he continues

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to be confined in prison with no end in sight.4 When he was sent to Fishkill’s

RTF, he was housed with the general prison population, where he was subject to

the same conditions as any other inmate. Now that he is at Queensboro, he fares

no better. He is still housed with the general prison population; and he is still

subject to most of the same prison rules and regulations. See also infra Point III.B

(Queensboro is not an RTF). Critically, he is not free to leave the facility when he

chooses—or even during standard daylight hours—as he would be if it was truly a

residence rather than a prison. Indeed, some aspects of his life are even more

restricted than when he was in prison: he has been denied visitation with his

daughter, because respondents claim minors are prohibited from entering RTFs.

Adding insult to injury, petitioner’s continued imprisonment has deprived

him of a meaningful opportunity to find the type of housing that would effectuate

his release. Unlike a person actually serving PRS, he is not free to search the

internet for listings, to visit apartments that are on the market, or to access a phone

where potential landlords could contact him. Thus, warehousing him at the socalled RTF infringes on his freedom as a parolee, as well as his freedom to interact

with his family, in a ceaseless, self-perpetuating cycle: they cannot visit him, and

he cannot leave to visit them.

Given respondents’ disregard for Mr. Ortiz’s previous “release” dates, petitioner has no faith

that he will be released prior to the end of his term of PRS. And notably, because they ignored

his earned conditional release, respondents have extended his term of PRS from 2021 to 2023.

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When the court imposed petitioner’s sentence, there were two distinct

portions: a period of confinement (10 years) and a period of supervision in the

community (5 years).

The prison portion reflects the court’s judgment and

authorizes the custody of petitioner. Earley v. Murray, 451 F.3d 71, 74 (2d Cir.

2006). Since his ME date of March 4, 2018 (and possibly at his CR date of

September 28, 2016), petitioner has had a fundamental liberty interest in not being

confined. Yet to this day, he remains unlawfully detained by respondents in a

correctional facility where he is treated as a prisoner, not a resident.

Respondents cannot unilaterally adjust petitioner’s sentence. He was not

sentenced to a blanket term of 15 years of imprisonment to be delineated in

whatever fashion respondents wish.

By ignoring the meaningful distinction

between PRS and confinement, respondents are substantially infringing on

petitioner’s protected liberty interest.

C. Respondents’ decision to hold petitioner at the RTF in prison-like

conditions is fundamentally unfair and, in any event, is not

narrowly tailored to the goal of protecting children, as required to

justify the infringement on his liberty.

Because respondents have infringed on petitioner’s fundamental liberty

interests, substantive due process affords heightened protection, requiring the state

to show that the infringement is narrowly tailored to serve a compelling state

interest—i.e., respondents must satisfy strict scrutiny review. See Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). Federal courts have consistently applied

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strict scrutiny to conditions of supervised release restricting the liberty interests of

someone under post-incarceration supervision. See, e.g., U.S. v. Reeves, 591 F.3d

77, 82-83 (2d Cir. 2010) (“assuming arguendo that the goal of the condition

[requiring parolee notify any potential romantic partner of his sex offender status]

is the protection of children, [the court] conclude[s] that it is not narrowly tailored

since it applies to any significant romantic relationship”); U.S. v. Myers, 426 F.3d

117, 126 (2d Cir. 2005) (Sotomayor, J.) (“If the liberty interest at stake is

fundamental [such as the parent-child relationship], a deprivation of that liberty is

“reasonably necessary” only if the deprivation is narrowly tailored to serve a

compelling government interest.”); Doe v. Lima, 270 F. Supp. 3d 684, 702

(S.D.N.Y. 2017) (“strict scrutiny [applies] to restrictions on liberty incident to

post-prison supervisory regimes, whether denominated as parole (as in New York

State) or as supervised release (as in the federal system)”).

And recently, a federal district court considering the Colorado SORA

statute, which does not even have residency restrictions, held that the statute

“enter[ed] the ‘zone of arbitrariness’” such that its enforcement became

“fundamentally unfair.” Millard v. Rankin, 265 F. Supp. 3d 1211, 1234-35 (D.

Colo. 2017) (appeal pending). Colorado’s statute provided only for broad public

disclosure of registrants’ personal information. Id. at 1234. Yet, because of the

rampant misuse of the information, such disclosure deprived individuals of their

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right to privacy and violated their liberty interests in living, working, associating

with their families and friends, and circulating in society. Id. at 1234-35.

Like a parolee, petitioner has a fundamental liberty interest in being free

from confinement, a freedom that includes gainful employment, association with

family and friends, and reintegration with the community outside of a prison.

Therefore, respondents’ decision to hold him indefinitely at an RTF must be

narrowly tailored to the compelling government interest at stake—the protection of

children—in order to be a constitutionally permissible infringement on that

freedom. But petitioner presents no particular risk to children, as his instant

offense was not committed against a minor. And nothing justifies separating

petitioner from his daughter. Thus, respondents cannot defend their unilateral

extension of petitioner’s term of incarceration. In fact, by relying on SARA as an

excuse to extend petitioner’s confinement, respondents demonstrate that they have

done nothing to narrowly tailor the infringement towards that supposed goal.5

Even if the court finds that ‘strict scrutiny’ review does not apply to petitioner’s liberty interest

as curtailed by § 259-14(c), it should still find that the statute was unconstitutionally applied to

petitioner. “[T]he State Constitution’s Due Process Clause [] provide[s] greater protection than

its federal counterpart.” People v. LaValle, 3 N.Y.3d 88, 127 (2004); accord Cooper v. Morin,

49 N.Y.2d 69, 79 (1979) (court should “balanc[e] the harm to the individual resulting from the

condition imposed against the benefit sought by the government through its enforcement”).

Under intermediate scrutiny, the state must show that the statute is “substantially related” to the

achievement of important government interests. Anonymous v. Rochester, 13 N.Y.3d 35, 48

(2009) (requirement ensures “that the validity [of the statute] is determined through reasoned

analysis rather than through the mechanical application of traditional, often inaccurate

assumptions”). Here, however, the nexus between the infringement upon petitioner’s liberty

rights and the goal of protecting minors cannot even be deemed substantial.

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Significantly, as time passes and evidence accumulates in the wake of

various states enacting SARA-like residency restrictions, social scientists have

found no linkage between the restrictions and rates of sex offenses targeting

children. Thus, experts have largely concluded that residency restrictions “should

not be considered a viable strategy for protecting communities.” Jill S. Levenson

& Andrea L. Hern, Sex Offender Residence Restrictions: Unintended

Consequences and Community Reentry, 9 Just. Res. & Pol’y 59, 61 (2007). For

instance, in Iowa, residency restrictions were found to have no impact on either the

rate of sex crimes or the number of child victims. 6 Studies in Colorado and Florida

also showed that sex offenders living within 1,000 to 2,500 feet of a school or

daycare did not reoffend more often than those who lived farther away. 7

At this point in time, it is obvious that residency restrictions “are unlikely to

deter sex offenders from committing new sex crimes[.]” Levenson & Hern, at 61.

Indeed, consistent with the mounting research, courts have begun to acknowledge

the arbitrariness of imposing such restrictions. For example, in striking down

Michigan’s SORA’s residency restrictions on ex post facto grounds, the Sixth

See Adkins, G., Huff, D. & Stageberg, P., Iowa Dep’t of Human Rights Div. of Criminal &

Juvenile Justice Planning & Statistical Analysis Ctr., The Iowa Sex Offender Registry &

Recidivism 16 (2000).

See Assoc. for the Trtmt. of Sexual Abusers, Sexual Offender Residence Restrictions, at 2

(Aug. 2, 2014); Zandberger, P., Levenson, J.S., & Hart, T., Residential Proximity to Schools and

Daycares: An empirical analysis of sex offense recidivism, CRIM. J. & BEHAVIOR, 37(5), at 482502 (2010) (Florida); Colorado Sex Offender Mgmt. Bd., White Paper on the Use of Residence

Restrictions as a Sex Offender Management Tool, at 2 (June 2009).

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Circuit highlighted the absence of any record suggesting “that residential

restrictions have any beneficial effect on recidivism rates.” Does #1-5 v. Snyder,

834 F.3d 696, 705 (6th Cir. 2016); see also The Pointless Banishment of Sex

Offenders, New York Times, September 8, 2015 (“there is not a single piece of

evidence that [residency restrictions] actually” protect children); 8 Housing

Restrictions Keep Sex Offenders in Prison Beyond Release Dates, New York

Times, August 21, 2014.9

In New York, the Appellate Division, Third Department, has recognized that

residency requirements not only do nothing to protect the public, but they impede

public safety. People ex rel. Green v. Superintendent of Sullivan Corr. Fac., 137

A.D.3d 56, 60 (3d Dep’t 2016). That is because “offenders are less likely to

recidivate when they are provided with suitable housing and employment.” Id.;

see also Matter of State of New York v. Floyd Y., 56 Misc. 3d 271, fns. 2, 3, 4 (Sup.

Ct. N.Y. Co. 2017) (Conviser, J.). Given the recognized failings of SARA’s

restrictions, they cannot be used to keep an offender confined beyond his or her

ME date unless the offender presents an acute threat to children. Petitioner does

not. The SORA hearing court found that he presented a high risk of reoffending in

Available at https://www.nytimes.com/2015/09/08/opinion/the-pointless-banishment-of-sexoffenders.html (last visited June 18, 2018).

Available at https://www.nytimes.com/2014/08/22/nyregion/with-new-limits-on-where-theycan-go-sex-offenders-are-held-after-serving-sentences.html (last visited June 18, 2018).

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general, but made no specific finding regarding his risk to children (and his instant

offense did not involve a minor).

Rather, by imposing SARA’s housing restrictions on individuals who are

ready to begin their terms of PRS, respondents are creating an obstacle to release.

And it is an obstacle that these individuals, who have served their prison time,

cannot surmount because they have none of the resources necessary to seek and

obtain the rare but required SARA-compliant housing. Perhaps someone with

unlimited economic resources would not be hindered; but for the vast majority, the

imposition of SARA results in an automatic extension of their confinement even

though the statute—on its face—does not apply to those, like petitioner, serving

PRS after completing their term of incarceration. See infra Point III.A. 10

Moreover, respondents’ actions short-circuit one of the few benefits

available to individuals in petitioner’s situation. Under New York City Code,

because Mr. Ortiz intends to reside in the City and is a single resident with no

assets or means of financial support, the City is required to provide him with

shelter that is SARA-compliant. See 18 N.Y.C.R.R. 352.36(a)(4)(iv), (b). Because

The Court of Appeals in People v. Diack, 24 N.Y.3d 674 (2015), mentioned post-release

supervision during its analysis of whether SARA’s restrictions preempted more severe local

restrictions. Id. at 681 (“Executive Law § 259–c(14) was added to require the Parole Board to

impose the school grounds mandatory condition on offenders . . . who are released on parole,

who are conditionally released or who are subject to a period of post-release supervision”)

(emphasis added). The Court, however, provided no justification for including PRS and did not

discuss the text of the statute or the difference between early release and release after serving a

full prison term. This dicta, which was irrelevant to the question at hand in Diack, was likely an

error and does not control the statutory interpretation of § 259–c(14).

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respondents have preemptively detained Mr. Ortiz, in no small part due to the

limited nature of SARA-complaint shelters in the City, he cannot even attempt to

exercise his right to such shelter or demand the City live up to its obligations.

* * *

Keeping petitioner confined beyond his ME date simply for not having a

SARA-compliant address is an extreme infringement on his fundamental liberty to

be free from confinement, as well as his rights to associate with family and friends

and to form other enduring attachments of normal life. See Morrissey, 408 U.S.

at 482. As the Supreme Court of California recently held with respect to “the

mandatory residency restrictions of [California’s] Jessica’s Law, as applied to

registered sex offenders on parole in San Diego County”:

[B]lanket enforcement of [such restrictions] cannot

survive even the more deferential rational basis standard

of constitutional review. Such enforcement has imposed

harsh and severe restrictions and disabilities on the

affected parolees’ liberty and privacy rights, however

limited, while producing conditions that hamper, rather

than foster, efforts to monitor, supervise, and rehabilitate

these persons.

Accordingly, it bears no rational

relationship to advancing the state’s legitimate goal of

protecting children from sexual predators, and has

infringed the affected parolees’ basic constitutional right

to be free of official action that is unreasonable, arbitrary,

and oppressive.

In re Taylor, 343 P.3d 867, 879 (Cal. 2015) (buffer zone at issue was 2,000 feet).

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Placing petitioner in an RTF, under conditions that amount to confinement

rather than simply as a residence, does not cure these substantive due process

violations;11 therefore, Mr. Ortiz is entitled to immediate release.

II.

Petitioner’s Continued Confinement After His Term of

Incarceration Also Violates the Eighth Amendment

Prohibition on Cruel and Unusual Punishment.

“[C]onfinement in a prison pursuant to a conviction but beyond the term of a

sentence seems . . . quintessentially punitive” and, thus, risks running afoul of the

Eighth Amendment. Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989); see

also Com. v. Baker, 295 S.W.3d 437, 446 (K y. 2009) (“the ‘magnitude of the

restraint’ involved in residency restrictions is sufficient for a lack of individual

assessment to render the statute punitive”). While a de minimis delay in releasing

an inmate from confinement may be acceptable by Eighth Amendment standards, a

prolonged delay of multiple months, as here, constitutes cruel and unusual

punishment. Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647,

654 (2d Cir. 1993).

It is difficult to conceive of anything more cruel than respondents’

abrogation of petitioner’s right to liberty at the conclusion of his judicially imposed

term of incarceration simply because the State has failed, over a period of 19

months, to secure housing that it considers suitable for his release. See Gonzalez v.

In any event, such confinement cannot last more than six months under New York’s scheme.

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Annucci, 149 A.D.3d 256, 263 (3d Dep’t 2017) (citing Correction Law § 201(5))

(there is an “affirmative statutory obligation to assist offenders in the process of

finding housing”). The length of his incarceration must relate to the offense, and

some level of criminal culpability is required to impose a term of incarceration.

For that reason, the United States Supreme Court struck down a 90-day jail term

for “be[ing] addicted to the use of narcotics” as in conflict with the Eighth

Amendment. Robinson v. California, 370 U.S. 660 (1962). The Court explained:

To be sure, imprisonment for ninety days is not, in the

abstract, a punishment which is either cruel or unusual.

But the question cannot be considered in the abstract.

Even one day in prison would be a cruel and unusual

punishment for the “crime” of having a common cold.

Id. at 667 (the court analogized being addicted to drugs to catching a virus in order

to emphasize the lack of control a defendant has over the allegedly culpable act).

In the same way, petitioner has, in essence, been convicted—with no

procedural due process whatsoever 12—of not having SARA-suitable housing and

been sentenced to additional prison time on top of the ten years he already served.

Respondents’ actions are tantamount to declaring homelessness or poverty to be a

crime. And, as the Court of Criminal Appeals in Alabama has held, it violates the

prohibition against cruel and unusual punishment to require “a sex offender [to]

It is as though respondents are attempting to effectuate civil confinement but without

employing the necessary procedures. Compare Kansas v. Hendricks, 521 U.S. 346, 357 (1997)

(“We have consistently upheld such involuntary commitment statutes provided the confinement

takes place pursuant to proper procedures and evidentiary standards.”) (emphasis added).

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provide an ‘actual address at which he or she will reside’” prior to his release for

precisely that reason—because doing so would effectively require him serve

additional jail time while he searches, in vain, for housing. State v. Adams, 91 So.

3d 724, 738-39 (Ala. Crim. App. 2010) (holding such a requirement “punishes the

defendant solely for his status of being homeless”); see also Vann v. State, 143 So.

3d 850, 862 (Ala. Crim. App. 2013) (under the new version of the law passed in

the wake of State v. Adams, “the sex offender is not required to provide a specific

street or route address of a fixed place to live where mail can be received, which

would be impossible for an indigent homeless offender”). Such a penalty, which is

currently being imposed on petitioner for a situation outside of his control, cannot

be countenanced under Eighth Amendment jurisprudence.

Moreover, petitioner was never informed that his term of PRS could amount

to another term of incarceration under a different name. Nor could the State or the

sentencing judge have constitutionally imposed such a sentence. See Furman v.

Georgia, 408 U.S. 238, 241 (1972) (“It is [] settled that the proscription of cruel

and unusual punishments forbids the judicial imposition of them as well as their

imposition by the legislature.”); see also Solem v. Helm, 463 U.S. 277, 286 (1983)

(sentences imposed must be proportional); Peterson v. Tomaselli, 469 F. Supp. 2d

146, 163 (S.D.N.Y. 2007) (“it may be argued that it is not ‘cruel and unusual’ to

hold a prisoner [past his CR date] for up to his [ME date], unless that sentence is

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grossly disproportionate to the crime committed”) (emphasis added); cf. State v.

Myers, 22 Misc. 3d 809, 820 (Sup. Ct. Albany Co. 2008) (when analyzing the

State’s attempt to hold a class of individuals in prison for “orderly” resentencing,

the court found it persuasive and problematic that “the end result” of the litigation

“could be the continued incarceration of individuals, some of whom have already

served and completed their sentences”).

Petitioner is, therefore, entitled to his immediate release.

III.

SARA Does Not Apply to Offenders on PRS; And,

Queensboro RTF Does Not Satisfy the Statutory

Requirements for an RTF—It is a Prison.

Petitioner’s ongoing detention by respondents at the Queensboro RTF is also

illegal because the statutory language makes it clear that SARA does not apply to

persons on PRS after serving a full prison term. Moreover, even if it did, this RTF

does not qualify as a “residential treatment facility” pursuant to the statutory

requirements for such facilities because none of the required treatment or programs

are provided. Therefore, petitioner is entitled to immediate release.

A. SARA does not apply to petitioner, who is serving a term of PRS.

Petitioner is not subject to SARA because SARA applies to those released

early either on parole or on conditional release, not to those serving PRS after the

expiration of their term of incarceration. It is a well-recognized canon of statutory

construction that general statutes yield to more specific ones, especially to resolve

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conflicts between statutes. See United States v. Estate of Romani, 523 U.S. 517,

532 (1998) (“more recent and specific provisions . . . apply [should] they [] conflict

with [an] older [] statute”); Fourco Glass Co. v. Transmirra Products Corp., 353

U.S. 222, 228 (1957) (“Specific terms prevail over the general in the same or

another statute”); Dutchess Cnty. Dep’t of Social Servs. ex rel. Day v. Day, 96

N.Y.2d 149, 153-54 (2001) (these are “well-established rule[s] of statutory

construction”).

The SARA specific portion of Executive Law § 259-c is no

exception, and indeed limits who can be subject to SARA’s residency restrictions.

The text of the SARA statute, Executive Law § 259-c(14), explicitly limits

its application to those “released on parole or conditionally released pursuant to

subdivision one or two of this section.” (emphasis added). Subdivisions one and

two of Executive Law § 259-c concern inmates who “may be released on parole or

on medical parole,” § 259-c(1), or who “may be presumptively released,

conditionally released or subject to a period of post-release supervision under an

indeterminate or determinate sentence of imprisonment,” § 259-c(2). While the

Legislature authorized the Board of Parole to determine the conditions of release

for those “subject to a period of post-release supervision,” Exec. L. § 259-c(2), the

legislature specifically chose to limit those subject to SARA, one particularly

onerous condition of release, to those released early. Exec. L. § 259-c(14) (“on

parole or conditionally released”). Thus, the statute’s plain, legislatively-imposed

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language narrows the scope of the residency restrictions to those subject to

supervision on early release. See Exec. L. § 259-c(14); P.L. § 65.10; see also N.Y.

State Assembly Bill No. A8894 (June 17, 2005); N.Y. State Senate Bill No. 479-A.

PRS in this context is a distinct category of supervision separate and apart

from parole, conditional release, and other forms of early release. This is made

apparent by the definition of “community supervision,” which includes various

forms of release: “the supervision of individuals released into the community on

temporary release, presumptive release, parole, conditional release, post-release

supervision or medical parole.” Corr. L. § 2(10); Exec. L. § 259(3). Petitioner is

certainly subject to community supervision: he is supposed to be serving his term

of PRS. However, he was neither paroled nor conditionally released. Instead, he

was improperly transferred to Fishkill RTF immediately before his ME Date, not

on his conditional release date or on a parole date, and he is being held now in

Queensboro RTF long after the expiration of his term of incarceration.

Where the Legislature has intended to address only some of the distinct

forms of release, it has explicitly enumerated which ones: e.g., by authorizing the

Board of Parole or DOCCS to grant “presumptive release” and “conditional

release,” Corr. L. § 206; to grant “presumptive release” to nonviolent inmates,

Corr. L. § 806; to grant “temporary release,” Corr. L. § 855; to grant “medical

parole,” Exec. L. §§ 259-r, 259-s; to grant “parole,” Exec. L. § 259-c(1); to

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determine the conditions of release for those “presumptively released,

conditionally released or subject to a period of post-release supervision” under an

indeterminate or determinate sentence, Exec. L. § 259-c(2); and to apply SARA to

those “released on parole or conditionally released,” Exec. L. § 259-c(14).

At the time of SARA’s original enactment in 2000, the Legislature

recognized a legal right to serve PRS in the community, and authorized a limited,

maximum six-month stay in an RTF as a transition to living in the community for

those who DOCCS felt needed it. P.L. § 70.45(3). At the same time, it recognized

the privileged nature of parole and conditional release, authorizing the use of RTFs

to house individuals on those—and only those—two forms of release at any point

in time, for any length of time (up to the individuals’ ME dates), and for any

reason. Indeed, Correction Law § 73 gives the commissioner a wide range of

power over inmates housed in RTFs.

For example, § 73(5) provides that “[t]he commissioner may at any time and

for any reason transfer an inmate from a residential treatment facility to another

correctional facility.” (emphasis added). But while this subsection clearly applies

to individuals sent to an RTF who are still serving the incarceration portion of their

sentence, it cannot apply to a parolee or a person on PRS who has reached his or

her ME date—they are no longer “inmates” and cannot simply be transferred back

to another prison. Their return to a correctional facility must satisfy the due

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process requirements governing parole or PRS revocation, despite the threats made

by the correctional officers to petitioner and others held at the RTF regarding

Tier III tickets and a return to Fishkill. See Bennett v. Annucci, No. 2016-07219,

2018 N.Y. Slip Op. 04319, 2018 WL 2945673, at *1 (2d Dep’t June 13, 2018)

(parolee held at RTF is “subject to the conditions of PRS and [can] properly be

charged with a violation of those conditions,” which requires a revocation hearing).

Finally, when the Legislature amended SARA in 2005 to add Level III

offenders and to establish the 1,000 foot perimeter around schools, it again chose

to exclude PRS from its application. Both in the Title of the 2000 act and in the

Memorandum in Support of Legislation in 2005, the Legislature confirmed that

SARA applied only to certain sex offenders “placed on conditional release or

parole.” And these statutory provisions make sense. Indeed, imagine the absurdity

of releasing an inmate on, e.g., medical parole for treatment only to find that he

cannot be housed at any medical facility because of SARA restrictions.

Release on PRS is a legal right, not a privilege to be earned. (See supra

Point I.) 13 Once Mr. Ortiz reached his judicially-imposed ME date, there had to be

a time limit on the amount of time he could be held in an RTF (though, still, only

In fact, discussing PRS and conditional release in other litigation, DOCCS has conceded that

“there is a clear and obvious difference where one group of inmates has a right to release, versus

a group that does not.” Matter of Luis Rodriguez v. Tina Stanford, N.Y. Bd. of Parole,

No. 2017/0773, Respondent Affirmation in Opposition to Motion to Amend the Petition and In

Opposition to the Amended Petition ¶ 18 (emphasis in original) (Exh. G).

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as a residence) if needed. Applying SARA for the full length of his term of PRS

would hinder that limitation, and indeed his rehabilitation. By contrast, parole and

conditional release are privileges, as individuals continue to serve their underlying

prison terms, which is reconcilable with SARA’s application.

“Parole,” “conditional release,” “post-release supervision,” and “community

supervision” are not interchangeable at DOCCS’ whim. The Legislature did not

authorize the Board to apply SARA to any individuals other than those “released

on parole or conditionally released”—not to those on “temporary release,”

“presumptive release,” “medical parole,” or as relevant here “post-release

supervision.” See Exec. L. §§ 259-c(14), 259(3). Unless SARA is amended, this

Court cannot, as respondents have, read PRS into the SARA statute.

B. Queensboro does not qualify as an RTF, given the conditions of

confinement to which petitioner is subject.

Finally, placing petitioner in a correctional facility designated by DOCCS as

an RTF does not satisfy substantive due process. The conditions imposed on

petitioner in the RTF must be consistent with his protected liberty interests. See

People v. Correa, 15 N.Y.3d 213, 233 (2010) (statutes should be interpreted and

applied so as to avoid “constitutional infirmity”). Here, the RTF should function

only as petitioner’s residence. Corr. L. § 73(10). But in any event, the RTF must

also be, in fact, a “residential treatment facility,” which Queensboro is not.

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The status of persons in RTFs vary greatly. 14 They may have served the

entire confinement portion of their sentence or they may still be serving that

portion and “soon be eligible for release on parole,” “will become eligible for

community supervision,” or have “one year or less remaining to be served under

his or her sentence.”

Corr. L. § 2(6).

Understandably, the RTF conditions

imposed on them will vary with their status.

Correction Law § 73(2) provides that “[t]he department shall be responsible

for securing appropriate education, on-the-job training and employment for

inmates transferred to residential treatment facilities.”

The Department “shall

supervise such inmates during their participation in activities outside any such

facility and at all times while they are outside any such facility.” Id. (emphasis

added).

Certainly inmates who are serving the confinement portion of their

sentence may justifiably be subject to supervision at all times outside the RTF, but

parolees and persons under post-release supervision cannot be subject to such

conditions. They should be able to work outside without an armed guard hovering

over them. Indeed, as previously explained, § 73(10) requires that when “persons

An RTF is defined as “[a] correctional facility consisting of a community based residence in

or near a community where employment, educational and training opportunities are readily

available for persons who are on parole or conditional release and for persons who are or who

will soon be eligible for release on parole who intend to reside in or near that community when

released.” Corr. L. § 2(6) (emphasis added). “[T]he commissioner may transfer any inmate of a

correctional facility who is eligible for community supervision or who will become eligible for

community supervision within six months after the date of transfer or who has one year or less

remaining to be served under his or her sentence to a residential treatment facility . . . .” Corr. L.

§ 73(1) (emphasis added).

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who are on community supervision” are provided housing at an RTF, it should be

treated as a “residence.”

As multiple courts have found, Fishkill, Queensboro, and other correctional

facilities that are designated as RTFs function, in reality, as prisons. See, e.g.,

People ex rel. Scarberry, No. 3963/2014, at 2 (Sup. Ct. Dutchess Co. Nov. 21,

2014) (Rosa, J.) (Exh. H) (holding that “[w]hile there are distinctions in the daily

schedule and treatment of RTF [Fishkill] residents and the general population of

inmates at the FCF, these are de minimis and insufficient to satisfy the

requirements of C.L. § 2(6) and § 73,” and that petitioner, while nominally housed

at the Fishkill RTF, was “still a prisoner”); People ex rel. Joe, No. 7985/2014 (Sup.

Ct. Columbia Co. Oct. 30, 2014) (Hudson C.F. is not an RTF) (Exh. I); People ex

rel. Davis v. Superintendent, 11 Misc. 3d 1072(A) (Sup. Ct. Seneca Co. 2006)

(“Habeas corpus relief is not only available to one in prison but also to one

‘otherwise restrained in his liberty.’. . . That Willard is not defined as a

‘correctional facility’ [] is of no moment. It is the reality of the circumstances and

not the title ascribed to them that matters.”).

The goal of RTFs is “the rehabilitation and total reintegration into the

community” of its “residents.” Corr. L. § 73(3); see Corr. L. § 201(7) (DOCCS

“shall encourage apprenticeship training of such persons through the assistance and

cooperation of industrial, commercial and labor organizations”), § 201(5) (DOCCS

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“shall assist inmates eligible for community supervision and inmates who are on

community supervision to secure employment, educational or vocational training,

and housing”); see also 7 N.Y.C.R.R. § 1.5(m); 9 N.Y.C.R.R. § 8002.7(d)(4). In

furtherance of those goals, DOCCS is to assign each RTF resident to a specific

program geared toward those ends, Corr. L. § 73(3), and secure appropriate

education, on-the-job training, and employment for them, Corr. L. § 73(2).

However, the only job petitioner has been offered is that of a “porter” inside

the walls of the correctional facility, which consists of ministerial janitorial work

and is the same job offered to inmates serving their sentences. It involves no

training.

Similarly, the only community reintegration and education program

offered is the same that is offered to all inmates preparing to transition out of

custody (Transitional Phase III programming).

It involves no job-readiness

preparation inside or outside of prison walls. Nor can unloading trucks, albeit

outside the facility, a handful of times honestly be viewed as job-readiness

preparation. Petitioner is already trained as a driver and in the culinary arts, but

respondents are doing nothing to capitalize on his re-entry potential in those fields.

The other programs that DOCCS lists as available at Queensboro generally

are, in fact, not available to residents of the RTF portion of the facility. And,

absent an effective system that allows petitioner to find compliant housing,

respondents cannot indefinitely confine him pursuant to SARA under what must be

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a pretext of assistance. By now, 19 months after Mr. Ortiz was due to be released,

respondents should have found him the necessary housing. Instead, as a parolee in

name alone, he is being more accurately called an inmate by the prison staff and

threatened daily with re-incarceration further away from the city.

In sum, merely naming a prison an RTF does not make it one. Cf. Ek v.

United States, 308 F. Supp. 1155, 1157 (S.D.N.Y. 1969) (“It may be true that

‘stone walls and iron bars do not a prison make,’ in song; but where, as here,

petitioner [continues to be] incarcerated . . ., it is disingenuous to contend that he

has not been ‘imprisoned.’”).

* * *

Respondents certified petitioner’s good time and told him he was eligible for

release on September 28, 2016. Then, after ignoring that deadline, they moved the

target to March 4, 2018. They have now had over 19 months to help Mr. Ortiz find

SARA-compliant housing, but they have failed to do so. They cannot be allowed

to continue on this path and, based on a misreading of SARA and the Correction

Law, extend petitioner’s imprisonment indefinitely.

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CONCLUSION

FOR ALL OF THE REASONS STATED

HEREIN, PETITIONER IS ENTITLED TO

IMMEDIATE

HIS

RELEASE;

THERFORE, THIS COURT SHOULD

ISSUE THE WRIT AND GRANT ANY

OTHER RELIEF DEEMED PROPER.

Dated:

New York, New York

June 4, 2018

Respectfully s

Will A. Pa

Of Counse

Seymour W. James, Jr., Esq.

THE LEGAL AID SOCIETY

Criminal Appeals Bureau

199 Water Street

New York, New York 10038

Telephone No. (212) 577-3442

Attorneysfor Petitioner

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

The People of the State of New York ex. rel.

ANGEL ORTIZ,

DIN 08-A-4974 & NYSID # 05394060J,

Petitioner,

- against DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

AFFIRMATION

IN FURTHER

SUPPORT OF AND

IN REPLY TO

RESPONDENTS’

OPPOSITION TO A

WRIT OF

HABEAS CORPUS

S.P. No. 113-2018

Justice Latella

Respondents.

STATE OF NEW YORK

COUNTY OF NEW YORK

ss.:

WILL A. PAGE, Esq., an attorney duly admitted to the practice of law in this State

and not a party to the instant action, does hereby subscribe and affirm under

penalty of perjury the following to be true pursuant to C.P.L.R. § 2106:

I am of counsel to JUSTINE LUONGO, Esq., The Legal Aid Society,

Criminal Appeals Bureau, the attorney of record herein.

I make the following affirmation in further support of Mr. Ortiz’s petition

for a writ of habeas corpus and in reply to the opposition filed by

respondents on August 20, 2018. (See Affirmation of Yan Fu in Opp’n to

Petition (“Opp’n”).)

This supplemental affirmation incorporates the

allegations made in petitioner’s June 25, 2018 petition, and provides

additional details and evidence concerning Mr. Ortiz’s custody.

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As will be explored below, the constitutional grounds for granting the writ

remain compelling, and were only cursorily addressed by respondents.

Moreover, the conditions and circumstances surrounding Mr. Ortiz’s

prolonged detention at Queensboro Correctional Facility are not as

respondents have described them.

Included with this affirmation are what I believe to be true and correct

copies of the following exhibits:

Exhibit J:

Letter from Deputy Commissioner Ana Enright to

Mr. Ortiz regarding the end of petitioner’s period of postrelease supervision, dated August 13, 2018.

Exhibit K: Redacted and coded excerpts from internal DOCCS

spreadsheets documenting the status of various

individuals on the “Active RTF” list as a result of SARA

housing restrictions, obtained through related litigation.

Exhibit L:

Response from ORC Caceres to petitioner regarding

Mr. Ortiz’s repeated requests to be released from

imprisonment to a shelter, dated August 4, 2018.

Mr. Ortiz has also provided an affidavit further detailing the conditions of

his confinement. (See Affidavit of Angel Ortiz dated August 30, 2018

(“Ortiz Aff.”).)

To the extent the Court seeks additional evidence on any of the allegations

made as part of this petition, petitioner reiterates his request to be present at

a hearing where such evidence and testimony can be introduced.

Should respondents release Mr. Ortiz from custody prior to the hearing,

which is currently scheduled for September 5, 2018, petitioner requests that

the Court convert this action to a proceeding pursuant to Article 78 to

address the issues that are not rendered moot by his release.

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Examples of these persistent issues include a) the inappropriateness of

Queensboro as an RTF for sex offenders detained pursuant to SARA,

(see Exhibit E), and b) the unconscionable extension of Mr. Ortiz’s term of

PRS. (Compare Exhibit A (original end date listed as Sept. 28, 2021), with

Exhibit D (revised end date listed as Mar. 2, 2023); see also Exhibit J.)

Custody Conditions Akin to Imprisonment

10.

Mr. Ortiz describes the situation at the RTF as “frightening” and “tense.”

(See Ortiz Aff. at ¶¶13-14.)

11.

This

unsurprising

given

that

the

SORA-registered

individuals

involuntarily confined at the RTF (“SARA-RTF inmates”) are lumped

together with non-RTF prisoners serving “regular” time. (Id. at ¶13.)

12.

Rather than a therapeutic environment, the prison is replete with gang

activity and threats being made against the SARA-RTF inmates.

(Id.

at ¶15.)

13.

As for programming, Mr. Ortiz continues to be utilized as part of a “work

crew,” but he and the others do not receive any sex offender therapy or drug

abuse treatment. (Id. at ¶¶17-20.)

14.

The staff at Queensboro explained to the SARA-RTF inmates that “because

of all the litigation” Queensboro and Parole were required to provide

“something,” which is one program, an Aggression Replacement Therapy

course, once every two weeks. (Id. at ¶¶21-22.) The affidavit provided by

the Deputy Superintendent of Programs, Mr. Barometre, submitted by

respondents in opposition to the petition, confirms this bi-weekly

“programming” as “arranged by the Community Supervision staff.”

(Affidavit of Delta Barometre (“Barometre Aff.”) at ¶8.)

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15.

But respondents tacitly admit that the SARA-RTF inmates are not receiving

any appropriate or worthwhile residential treatment. Instead, these SARARTF inmates are provided the opportunity to unload boxes and clean for $10

a day. (Opp’n at ¶23; Barometre Aff. at ¶6.)

16.

While Mr. Barometre describes this opportunity as “more than any inmate

can earn in the prison vocational programs,” (Barometre Aff. at ¶6), an RTF

is supposed to provide re-entry services, not exploit the manual labor of

forced residents at a substandard hourly wage (less than $2 per hour).

(See Exhibit E (“The principal objectives of the Reentry Services Program

are to provide inmates . . . with an opportunity to finalize their release plans,

to work toward family and community reintegration, and to strive for an

orderly transition back into society. In addition, inmates in the program are

prepared by representatives from both public and private sectors to make use

of those resources upon release.”)); see also Correction Law § 73(3)

(“Programs [are] directed toward the rehabilitation and total reintegration

into the community of persons transferred to a[n] [RTF]”).

17.

Yet respondents fail to address the explicit exclusion of those convicted of

sex offenses from receiving RTF-related re-entry services per the DOCCS

Directive for Queensboro.

(See Exhibit E (“To be eligible for the

Queensboro Correctional Facility Reentry Services Program, an inmate: . . .

5. Must not have a conviction for a sex offense”) (emphasis added).)

18.

Instead, they disingenuously suggest that “it is undisputed that such

programs are offered at Queensboro,” without providing the material caveat

that Mr. Ortiz and others in his situation are by definition excluded from that

programming. (See Opp’n at ¶23.)

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19.

Queensboro is a corrections facility that may provide RTF services to some

of its residents, but SARA-RTF inmates receive no “treatment,” and the

facility is not functioning as a “residence.” (See also Ortiz Aff. ¶¶4, 12, 16,

23.) Thus, it cannot be considered a suitable RTF placement for petitioner.

See C.L. § 73(3) & (10).

Confinement at the Faux RTF Violates Substantive Due Process

20.

Continuing Mr. Ortiz’s period of incarceration past the maximum expiration

date of his sentence (his “ME date”) in this environment does not comport

with substantive due process for all of the reasons already argued.

(See Mem. in Supp. of Pet. at 3-21.)

21.

Although Mr. Ortiz’s liberty interests are constrained, contrary to

respondents’ contention, (see Opp’n at ¶18), the liberty that he retains

cannot be unilaterally extinguished. See Williams v. Dep’t of Corr. & Cmty.

Supervision, 136 A.D.3d 147, 164 (1st Dep’t 2016) (those “subject to

SARA” have “conditional liberty” that is constrained by “special conditions

of parole”). See also Bearden v. Georgia, 461 U.S. 660, 672-73 (1983)

(to “deprive [a] probationer of his conditional freedom simply because,

through no fault of his own, he cannot pay [a] fine . . . would be contrary to

the fundamental fairness required by the Fourteenth Amendment”).

22.

Mr. Ortiz is entitled to exist in “condition[s] [] very different from that of

confinement in a prison.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972);

see also Werner v. Wall, 836 F.3d 751, 767 (7th Cir. 2016) (Hamilton, C.J.,

dissenting in part) (citing Morrissey) (“even a parolee, whose liberty is

conditional and constrained, cannot have his parole revoked and his liberty

taken away without due process of law”).

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23.

As it stands, respondents feel comfortable imposing special conditions of

imprisonment, which cannot be countenanced under substantive due process,

particularly when the only act of which Mr. Ortiz is now guilty is an act of

omission driven by circumstance—failure to find housing due to lack of

resources. (See Exhibit L (acknowledging Mr. Ortiz was only held because

he lacked SARA compliant housing)); see also Robinson v. California, 370

U.S. 660 (1962) (“Even one day in prison would be a cruel and unusual

punishment for the ‘crime’ of having a common cold”).

24.

Strict scrutiny applies to these deprivations, rather than the more relaxed

rational basis test or intermediate scrutiny, because Mr. Ortiz has completed

his term of incarceration. See also Williams v. Illinois, 399 U.S. 235, 241-42

(1970) (“once the State has defined the outer limits of incarceration

necessary to satisfy its penological interests and policies, it may not then

subject a certain class of convicted defendants to a period of imprisonment

beyond the statutory maximum solely by reason of their indigency”).

25.

In fact, as of the date of the hearing in this matter, petitioner will have

completed his entire term of incarceration and the maximum six month

period of enrollment at an RTF.

26.

Respondent recasts the question as one relating to the permissibility of

SARA restrictions in general, which is governed by the rational basis test.

(See Opp’n at ¶18.)

27.

The question here, however, is not whether SARA restrictions can be

imposed, but instead is whether those restrictions can be used to entirely

extinguish Mr. Ortiz’s liberty and keep him in prison.

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28.

Simply put, it would be unconscionable to subject Mr. Ortiz—who is now

definitively on post-release supervision—to the same conditions as someone

who has just begun serving a term of incarceration.1

29.

Indeed, his fundamental liberty to associate with his family, now that he has

technically been “released” to the community under supervision, has also

been unduly restricted—more so than when he was actually in prison—

because DOCCS failed to address the issues surrounding his ability to see

his daughter for nearly the entire six months of his RTF confinement.

Doe v. Lima, 270 F. Supp. 3d 684, 702 (S.D.N.Y. 2017) (“strict scrutiny

[applies] to restrictions on liberty incident to post-prison supervisory

regimes, whether denominated as parole (as in New York State) or as

supervised release (as in the federal system)”).

An example from Wisconsin is strikingly similar to Mr. Ortiz’s situation:

For more than a year neither Werner nor anyone helping him could find lawful and suitable

housing for him. Werner was [therefore] kept in custody pursuant to [a] policy that the defendants

adopted and enforced. That policy was unconstitutional and contrary to state law even when it

was issued in 2002.

Werner v. Wall, 836 F.3d 751, 766 (7th Cir. 2016) (Hamilton, C.J., dissenting in part). The majority of the Seventh

Circuit panel addressing Mr. Werner’s claims appeared to agree with Judge Hamilton that constitutional principles

were implicated—and likely violated. See id. at 761 (majority) (“we think that Kingsley, McNeil, and Baker suggest

that substantive due process principles are implicated here”) (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473

(2015) (analyzing the greater due process protections applicable to pretrial detainees); McNeil v. Dir., Patuxent Inst.,

407 U.S. 245, 249 (1972) (“A confinement that is in fact indeterminate cannot rest on procedures designed to

authorize a brief period of observation.”); Baker v. McCollan, 443 U.S. 137, 145 (1979) (but a “detention of three

days over a New Year’s weekend does not and could not amount to such a deprivation”)). Nevertheless, the

majority opted to extend qualified immunity to the defendants on the basis that the precise contours of the

constitutional claim were not clearly established, thus avoiding the un-briefed issue of exactly how Mr. Werner’s

substantive due process rights were violated. See id. at 759-61 (majority).

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DOCCS’ Prolonged Delay in Addressing Visitation Issues

30.

The records provided as part of respondents’ opposition to this petition

document the arbitrary restriction of Mr. Ortiz’s family visitation.

Queensboro “RTF” is supposed to assist with “family and community

reintegration,” but Mr. Ortiz was kept from speaking with and seeing his

daughter for almost his entire period of confinement (March to August).

31.

Indeed, once he was sent to the RTF, and conditions of parole were imposed

despite his continued incarceration, Mr. Ortiz was told that he had to cease

communicating with his daughter entirely. (See Opp’n, Ex. A [Chronos]

(entry dated Mar. 15, 2018).)

32.

He sought assistance with the issue at that time, and many times thereafter,

but has only recently begun to see any progress. (Id., Ex. A (entries dated

May 11, 2018, May 25, 2018, June 12, 2018, July 6, 2018, and July 20, 2018

(at the end of July, parole confirmed that his daughter wants to see him));

Ortiz Aff. ¶10.)

33.

Respondents claim that they are arranging for Mr. Ortiz to be able to visit

with his daughter, (Opp’n at ¶19), but in reality they have been dragging

their feet since March. It was not until a week ago, August 25, 2018, that

petitioner was able to visit with her. (Ortiz Aff. at ¶¶9-11.)

34.

Thus, his punishment is worse at the “RTF” than when he was in traditional

“prison” where he could at least freely exercise his fundamental right to

associate with his daughter.

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DOCCS’ Perfunctory Assistance With Finding Compliant Housing

35.

Respondent claims that Mr. Ortiz’s continued confinement at the RTF is not

a punishment (Opp’n at ¶20 (“Petitioner is not being punished”))—but the

homelessness penalty being exacted by the State cannot seriously be

considered anything else. See Sample v. Diecks, 885 F.2d 1099, 1108 (3d

Cir. 1989) (“[C]onfinement in a prison pursuant to a conviction but beyond

the term of a sentence seems . . . quintessentially punitive”).

36.

Part of that penalty is the perpetuation of his situation. So long as Mr. Ortiz

is living behind bars, without the ability to research potential living

situations, visit apartments, speak with managers and leasing agents, or

become gainfully employed, then there is no way he can ever secure SARAcompliant housing.

37.

DOCCS claims to be “diligently assisting” him to find suitable housing, but

their own records render their diligence suspect.

38.

As part of an ongoing class action litigation focused on DOCCS’ treatment

of the many individuals in this predicament, DOCCS has produced

snapshots of the RTF population that show the “efforts” expended by reentry to locate housing for those confined at the RTFs. (See Exhibit K.)

39.

What these snapshots reveal is that DOCCS’ “diligent assistance” consists of

doing a task they should have done already: to prepare for the release of

individuals convicted of sex offenses, DOCCS should already know which

temporary locations, particularly shelters and hotels, are SARA-complaint

and affordable—and which are not.

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40.

Unfortunately, the snapshots show that DOCCS a) does not know that

information and b) is only now, and very slowly, accumulating that

necessary knowledge at the expense of all the SARA-RTF inmates.

41.

Thus, Ms. Hernandez’s statement that she and her staff “have investigated at

least 26 locations where we might find housing for Petitioner,” (Affidavit of

Christina H ernandez, MSW (“H ernandez Aff.”) at ¶12), to “assist[] him in

attempting to locate housing” that is SARA-compliant, (id. at ¶2), is

misleading at best.

42.

The vast majority of the “locations” that she has “investigated” are hotels—

and they are the same hotels she and her staff investigate in an

excruciatingly slow and piecemeal fashion for a large group of inmates.

43.

It appears that DOCCS randomly identifies one or two hotels every few

weeks and then determines whether a particular hotel is near a school. On

the rare occasion when a hotel is not near a school, DOCCS determines

whether it would be cost-prohibitive to house those subject to SARA there.

44.

These results are written into multiple SARA-RTF inmates’ logs.

45.

Ms. H ernandez’s affidavit describes hotels that Re-Entry Manager Stacey

Dorsey investigated “for potential immediate placement of Petitioner,” (id.

at ¶5), and nearly every example provided is the same hotel listed on

multiple other SARA-RTF inmates snapshot reports for that time period.

(Compare, e.g., Opp’n, Ex. A (entry dated July 23, 2018) (the Blue Moon

Hotel is “non-compliant”), with Exhibit K at 005797 (the “07132018 Active

RTF Spreadsheet”) (showing the same excuse for at least 10 individuals

detained in RTFs).

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46.

Based on these records, one must conclude that DOCCS is looking up the

address for one hotel, finding out that the hotel is non-compliant, and

logging that result into various prisoners’ logs.

47.

Looking at the reverse potential outcome exemplifies why this approach is

only an illusion of assistance: would DOCCS be able to release all of the

SARA-RTF inmates that same day into the same location? Certainly not.

48.

But it is difficult to understand why DOCCS even needs to check the

addresses of hotels in the New York City area in the first place, given that

most of these hotels have been in existence for quite some time 2 and the

scarcity of SARA-compliant housing has been well-documented and

recognized by DOCCS since at least 2012.3

49.

It is not as though public schools and playgrounds are changing locations or

regularly closing down on a weekly basis.4

50.

Nor should the expensive nature of some of these hotels, for example the

Omni Berkshire, come as a surprise. (Compare Opp’n, Ex. A (entry dated

Mar. 14, 2018), with Exhibit K at 005530-32 (providing the same note that

the rates are too high at the Omni for at least 12 inmates’ logs).)5

For example, the “award-winning NYC boutique hotel” known as the Blue Moon Hotel has been functioning in

the same location for at least a decade.

See Blue Moon H otel (Introduction), available at

https://www.bluemoonboutiquehotel.com/en-us/introduction.

“Clusters of sex offenders living in boarding houses like Horizon Hope, cheap motels and homeless shelters have

become common in the decade since New York implemented statewide residency restrictions for many sex

offenders under parole supervision.” Jie Jenny Zou, Housing the Unwanted, THE NEW YORK WORLD (Mar. 19,

2015), available at http://jiejennyzou.com/wp-content/uploads/2012/05/nyw_housing_the_unwanted.pdf.

Generally speaking, the NYC Department of Education closes schools down at scheduled periods of time, such as

at the end of the school year. See, e.g., DOE Announces Plan To Close 14 Public Schools (Dec. 18, 2017), available

at https://newyork.cbslocal.com/2017/12/18/bronx-stabbing-school-closing/.

The average nightly rate of the Omni Berkshire is “$250 - $771” according to one popular travel website.

TripAdvisor, available at https://www.tripadvisor.com/Hotel_Review-g60763-d113300-Reviews-Omni_Berkshire_

Place-New_York_City_New_York.html.

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51.

The reasonable conclusion to draw from this information is that respondents,

despite being aware of the housing crisis for years, have never bothered to

find effective placements for those on SARA. Ms. H ernandez admits as

much when she discusses four meetings she had in October and November

of 2017 surrounding the lack of suitable housing. (H ernandez Aff. at ¶3.)

But whether DOCCS finally started looking for solutions (a year ago) is

irrelevant: Mr. Ortiz is entitled to release now.

52.

It is possible to draw another conclusion from the evidence: given that

DOCCS might have to pay for such a hotel placement for the duration of an

individual’s post-release supervision, or force them back into an

overcrowded RTF, the allegedly “diligent” hotel search may simply be a

strategy to “look busy” until space opens up at a SARA-compliant shelter.

53.

In either case, calling a random smattering of hotels, many of which may not

even be traditional “shelter” hotels,6 is not an appropriate way to secure

housing—particularly for people that have served their sentences and are

only being detained because they lack resources to find specialized housing.

54.

In fact, when Mr. Ortiz attempted one year ago to do the exact same thing

that DOCCS now claims is suitable assistance—check the availability at a

local hotel—he was informed that only private residences would be

considered. (See Opp’n, Ex. A (entry dated Sept. 15, 2017).)

The practice of housing New York City’s homeless citizenry in hotels is nothing new. See, e.g., Homeless Put

Into Hotels For Tourists, N.Y. TIMES (Aug. 28, 1991), available at https://www.nytimes.com/1991/08/28/nyregion/

homeless-put-into-hotels-for-tourists.html. DOCCS should be well-aware of the a) cost of these hotels, b) location

of these hotels, and c) ultimate suitability of such hotels based on cost and location.

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55.

In any event, putting aside the absurdity of this piecemeal check-and-log

process, it can hardly be called diligent to do a single search on behalf of

multiple individuals. And it certainly cannot be considered individualized

and affirmative. See Gonzalez v. Annucci, 149 A.D.3d 256, 264 (3d Dep’t

2017) (“passive approach of leaving the primary obligation to locate housing

to an individual confined in a medium security prison facility . . ., without

access to information or communication resources beyond that afforded to

other prison inmates, falls far short of the spirit and purpose of the

legislative obligation imposed upon DOCCS to assist in this process”).

56.

A single hotel address lookup, even once or twice a week, applied to a large

group of people that are being held in ongoing confinement despite the

expiration of their sentences cannot be considered genuine assistance.

57.

As in Gonzalez, “[t]here is nothing in the record to indicate that officials

provided petitioner with any manner of aid, such as other suggestions,

referrals, information or any other form of affirmative assistance[.]” Id.

58.

And, although Ms. H ernandez is only concerned with the time period

beginning in February 2018, Mr. Ortiz has been held since his earned

conditional release date of September 28, 2016.

59.

A review of the Chrono Report entries reveals that the near-total assistance

provided to Mr. Ortiz during that time (September 2016 until March 2018)

consisted of sending Stacey Dorsey emails, often with months passing

between check-ins. Parole would inquire as to whether any placements had

become available, and Ms. Dorsey would invariably respond in the same

negative fashion. (See Opp’n, Ex. A (entries for Feb. 2, 2017 & Feb. 7,

2017; May 22, 2017; July 11, 2017; Sept. 1, 2017; Dec. 15, 2017; Feb. 23,

2018 (“Reentry does not have resources that meet requested criteria”)).)

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60.

These Chrono Reports demonstrate that no serious effort was made to secure

housing for Mr. Ortiz since he was denied his conditional release. Rather,

DOCCS has invented a new way to deny conditional release to those

convicted of sex offenses: a penalty for lacking the resources to secure

SARA-compliant housing. 7

61.

Thus, DOCCS has abrogated its responsibility to assist on an individual

level and is merely putting on a façade of assistance.

62.

Mr. Ortiz would gladly live in SARA-compliant housing if it existed, and

there has been no showing that he willfully refuses to pay for such housing

or to seek it out. (See Ortiz Aff. ¶¶25-26); cf. Tate v. Short, 401 U.S. 395,

400 (1971) (“We emphasize that our holding today does not suggest any

constitutional infirmity in imprisonment of a defendant with the means to

pay a fine who refuses or neglects to do so.”).

63.

If respondents cannot find housing for Mr. Ortiz after nearly two years of

“diligence,” then the task is surely impossible—and Mr. Ortiz is being

detained without hope of release.

64.

In sum, it is cruel and unusual for respondents to punish him for his lack of

resources. See, e.g., State v. Adams, 91 So. 3d 724, 738-39 (Ala. Crim. App.

2010) (Alabama appellate court agreed that requiring a “a sex offender [to]

provide an ‘actual address at which he or she will reside’” prior to his

release “punishes the defendant solely for his status of being homeless”).

Notably, DOCCS does not otherwise indicate that parole will be revoked if someone becomes homeless.

See Parole H andbook (“The Division may assist you in locating programs that may be available to provide a

temporary place to live if you become homeless”), available at http://www.doccs.ny.gov/Parole_Handbook.html.

Nor does SORA create any penalty for not having a residence, only for failing to keep the local authorities apprised

of an address change. See Corr. Law § 168-t (“Any such failure to register or verify may also be the basis for

revocation of parole pursuant to section two hundred fifty-nine-i of the executive law”).

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DOCCS’ Failure to Credit Mr. Ortiz for the Time Between His CR and ME Dates

65.

Adding insult to the injury Mr. Ortiz has suffered, DOCCS justifies

extending his period of PRS from 2021 to 2023 even though he has been

held in prison conditions these past two years.

66.

Deputy Commissioner of Community Supervision, Ana Enright, explains

that Mr. Ortiz was held past his conditional release date because he did not

have suitable housing. (See Exhibit J (dated Aug. 13, 2018).)

67.

She then asserts that, because he could not be “admitted” to an RTF until the

expiration of his sentence, his PRS term did not begin until that time. (Id.)

68.

Thus, from DOCCS’ perspective, the 17 months of “good time” that Mr.

Ortiz earned are simply erased as a result of his indigence and bad luck.

69.

Tellingly, the Chrono Reports again conflict with DOCCS’ assertions.

70.

Starting as of October 26, 2016, Mr. Ortiz was catalogued as being “in RTF

status” with “no viable residence proposed.” (See Opp’n, Ex. A (entry dated

Oct. 26, 2016).)

This makes sense, given that the statute specifically

authorizes holding someone at an RTF (though only for six months) when

they are about to be “conditionally released”—which is the only way

DOCCS could continue to hold Mr. Ortiz despite his earned good time.

(See Pet., Ex. A); see also Penal Law § 70.45(3); Correction Law § 73(1).

71.

Indeed, that is why he was assigned parole officers who would contact

Stacey Dorsey once he reached and passed his C.R. date.

72.

Of course, Ms. Dorsey inevitably responded to any housing inquiry that no

“SARA compliant beds” were available.”

(Opp’n, Ex. A (entries dated

Feb. 2, 2017 (by P.O. S. Hamme) & Feb. 7, 2017 (by S. Dorsey).)

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73.

Nevertheless, it defies logic to categorize Mr. Ortiz as “in RTF status” as of

his conditional release date, and have parole officers searching for suitable

housing, only to then claim that Mr. Ortiz began his post-release supervision

in March 2018 at the expiration of his determinate sentence.

74.

It is unconscionable, and certainly an additional cruel and unusual

punishment, to fail to account for the additional 17 months he spent

in prison (October 2016 through February 2018) because DOCCS failed to

assist him in finding housing.

Six-Months After His Maximum Expiration Date is Long Enough

75.

As respondent admits, Mr. Ortiz reaches his six month anniversary of RTF

confinement at the beginning of September. (Opp’n at ¶13.) Therefore, at

that time, DOCCS must either release him or use the RTF as a residence.

76.

This result is not contrary to the Second Department’s recent decision, aptly

noted by respondents, addressing ongoing “placement” at an RTF.

77.

In People ex rel. McCurdy v. Warden, Westchester Cty. Corr. Facility, the

court “constru[ed] the relevant statutes together” and determined that

Correction Law § 73(10) and Penal Law § 70.45(3) are not in conflict.

McCurdy, 2018 N.Y. Slip. Op. 05777, No. 2016-01838, 2018 WL 3862986,

at *2 (2d Dep’t Aug. 15, 2018).

78.

The panel explained that, “[b]y its terms, Penal Law § 70.45(3) permits

DOCCS to require an offender subject to a term of postrelease supervision to

spend the first six months of his or her postrelease supervision in residential

treatment facility housing as a transitional period prior to re-entry into the

community.” Id. (emphasis added).

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79.

The court also held that, per Corr. L. § 73(10), “DOCCS has authority to

temporarily place a level three sex offender who has already completed more

than six months of his or her postrelease supervision . . . into residential

treatment facility housing in the event such offender is unable to locate

SARA-compliant community housing.” Id. (emphasis added).

80.

But the court, which took pains to use “familiar principles of statutory

construction,” id. at *1 (citation omitted), was entirely silent on the

difference between “participation in the programs of a[n] [RTF],” authorized

by P.L. § 70.45(3), and using an RTF as a “residence” or “housing,” which

the panel found to be temporarily allowable for periods past the six month

mark.

C.L. § 73(10); McCurdy, 2018 WL 3862986, at *2 (“residential

treatment facility housing”) (emphasis added).

81.

If the plain meaning of the statute is afforded any weight, then it must mean

that there is a distinction between the period of time when DOCCS can place

someone on PRS in RTF programming (with related confinement), and the

period of time when the RTF may serve as a shelter or housing. Compare

C.L. § 73(1) (authorizing the transfer of “inmates” to RTFs where they must

be “in custody” and “under [] supervision” at all times), with C.L. § 73(10)

(authoring the use of an RTF as a “residence for persons” on community

supervision where they will be “subject to conditions of community

supervision” as imposed by DOCCS while they “reside in such a facility”).

82.

Mr. Ortiz has reached that latter point in time when, under New York’s

statutory scheme, he has become a person again, as opposed to an inmate.

83.

If the court does not order his immediate release into the community, then at

the very least he should be allowed to treat Q ueensboro as a residence—

albeit with a curfew, like other shelters—rather than a prison.

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84.

Forcing individuals to potentially serve out their entire term of post-release

supervision behind bars and under constant supervision by corrections

officers, whether the facility is called an RTF or a prison, must be viewed as

an unreasonable restriction of these individuals’ liberty interests and as an

additional cruel and unusual punishment.

Conclusion

85.

Mr. Ortiz should be in the community serving his period of PRS, but

respondents have converted PRS into incarceration.

86.

Turning a 10-year determinate sentence with a 5-year period of post-release

supervision into a potentially 15-year term of incarceration does not comport

with substantive due process.

87.

Moreover, such a conversion of PRS into imprisonment on the basis of

economic status, or homelessness, is a cruel and unusual punishment.

88.

For both of these reasons, the Court should order Mr. Ortiz’s immediate

release, as his continued detention is constitutionally infirm.

89.

At minimum, the Court should direct respondents to treat the RTF as a

“residence,” or as “housing,” which is all that Correction Law § 73(10)

allows.

See McCurdy, 2018 WL 3862986, at *2 (“residential treatment

facility housing”).

90.

Mr. Ortiz should be free to come and go, to look for employment and

suitable housing, subject to a reasonable curfew, rather than DOCCS treating

him, as they have been, as an imprisoned inmate.

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Dated:

New York, New York

August II , 2018

Respectfi4Zy subm

Will A. Page, Esq.

Of Counsel

Justine Luongo, Esq.

THE LEGAL AID SOCIETY

Criminal Appeals Bureau

199 Water Street

New York, New York 10038

Telephone No. (212) 577.3442

Attorneys for Petitioner

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

The People of the State of New York ex. rel.

ANGEL ORTIZ,

DIN 08-A-4974 & NYSID # 05394060J,

Petitioner,

- against -

AFFIDAVIT OF

ANGEL ORTIZ

S.P. No. 113-2018

DENNIS BRESLIN, Superintendent of Queensboro

Correctional Facility, and NEW YORK STATE

DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION,

Justice Latella

Respondents.

STATE OF NEW YORK

COUNTY OF NEW YORK

ss.:

ANGEL ORTIZ, being duly sworn, does hereby state under penalty of perjury the

following to be true:

I am the petitioner named in caption above, and my counsel filed this

petition for a writ of habeas corpus on my behalf. It is my desire to be

present at the hearing that will be held in this matter, particularly if the Court

wishes to hear directly about these events from me.

I now verify the contents of the original petition, with a few minor

clarifications, and provide the additional details contained herein. I have

also provided my counsel with copies of letters and documents, which

I have received during my incarceration.

As of the date of this affidavit, I have not been released into the community.

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Every day that passes since DOCCS held me past my conditional release

date has left me feeling more isolated and hopeless.

Still, prior to the maximum expiration date of my sentence, I thought it could

not get any worse. I assumed that once my entire prison term expired

I would be released.

Nothing could have prepared me for what happened once I “maxed out.”

When I was transferred to Fishkill and told I would be placed on a “waitlist”

for the RTF there rather than being released, I was despondent.

Then, after my counsel scheduled a legal call with me, I was suddenly

placed into RTF programming at Fishkill—the same day.

I was very

surprised, and I honestly thought that maybe the situation was going to

improve. But, three days later, I was transferred to Queensboro RTF.

At Fishkill and, until very recently, at Queensboro, I have been unable to see

or call my daughter. This also surprised me: I have always been allowed to

speak and visit with her at the prisons that housed me over the last 10 years.

10.

I repeatedly asked the rehabilitation coordinators why I could not

communicate with her. Staff at the RTFs informed me that minors are not

allowed at RTFs without parole’s permission. But my parole officers all but

ignored my requests until very recently.

11.

On August 25, 2018, my daughter was finally allowed to visit me. It was the

first time that I could speak freely with her since my transfer to Queensboro.

12.

That is not, however, the only downside of the Queensboro prison. Not only

has my access to my daughter been severely restricted, but the RTF

environment is, in many ways, more dangerous than prison.

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175a

13.

It is very frightening, because we are housed in a designated area within the

general prison population, and the corrections officers have told me that

“they” know why “we” (the sex offenders) are here at Queensboro.

14.

It is also a very tense situation for my fellow RTF sex offender “residents”

because of the lack of programming, uncertainty of when or if we will ever

be released, and mix of our unit with the non-sex offender population.

15.

I have been threatened by gang-affiliated inmates because of my conviction

for a sex offense. Also, I have seen fights break out between the sex

offender residents, because tensions are high and many of us feel hopeless.

16.

While the guards are not generally armed when we are outside cleaning the

facility grounds, they are armed while we are on work release and under

their supervision. We are made to feel like we do not belong on the outside

of the prison walls. We are called “inmate” and treated like any other

prisoner. On a daily basis, someone asks me where I am “locked.”

17.

I have also not received any useful programming since DOCCS decided to

keep me in prison after my conditional release date.

18.

I have not received any additional sex offender therapy or aftercare, and I

have not been able to take part in substance abuse treatment.

19.

At Queensboro, I am part of a “work crew” and get to clean, sweep, or

unload boxes, but I do not get to search for housing or jobs.

20.

I do not get to learn any useful skills or prepare for re-entry. I am trained in

the culinary arts and have a lapsed commercial driver’s license, but those

areas of my skillset have not been explored to prepare me for finding a job.

A244

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21.

Once, when the group of us “sex offender RTF inmates” were complaining

about the lack of programs, the corrections officers and parole officers told

us that they would be providing us with one program, an ART (Aggression

Replacement Therapy) course that would meet every other week.

22.

They said that they had to provide something to us because of all the

litigation that is happening against DOCCS because of what they are doing

to us (keeping all of us past our CR and ME dates). But I completed ART

while I was serving my determinate sentence—in 2013.

23.

Being confined at Queensboro prison, aside from being dangerous, is

overwhelmingly disheartening.

24.

I know that I have made many mistakes in my life, but I thought that once I

served my time I would finally get to make amends, to move on with my

life, to try to be the father that my daughter needs in her life.

25.

I am truly sorry that I have no funds or outside resources that will allow me

to find SARA-compliant housing from inside this prison. If I was wealthy,

then I would gladly pay whatever I could to remain in housing that is

acceptable to DOCCS. Or, if I am released, I will do whatever it takes to get

a job and start paying for SARA-compliant housing.

26.

But I can never hope to find housing, or to pay for such housing, if I am

confined at Queensboro earning $10 a day.

27.

All I want to do is begin the process of reintegrating with the community

where I was born, where I have lived for most of my life, and where my

family lives. I have served my time, and I am nearly 50 years old.

28.

I hope that you will release me from prison to my mother and daughter, and

to what remains of my life.

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Sworn to before me this

3Q_ day of August 2018

Petitioner

Will ~ ~

Attorney and Counselor at Law

State of New York

Notary Commission: 02PA6371484

Qualified in Kings County

Expiration: fib. 11P I 2'J ZI.-

A246

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.