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March 17, 2008

NY- Local Sex Offender Residency Restriction Laws in NYS

2-25-2008 New York:

Earlier this month at the Association of Towns Annual Meeting in New York, a presentation was made on the status of sex offender residency restriction laws at the local government level in New York. As of December 19, 2007, 18 counties, 9 cities, 31 towns and 23 villages had enacted local laws with various restrictions. While many of these laws are aimed at prohibiting registered sex offenders from entering school grounds or other public areas where children are likely to congregate, a number are designed to specifically address residency restrictions. Most residency restrictions contain a distance restriction of 1,000 – 1,500 feet, although some use 500 feet and some use 2,500 feet. The longest distance requirement in effect is one mile (Town of Cicero in Onondaga County). Following the recent George Supreme Court case posted on this blog:(http://lawoftheland.wordpress.com/2007/11/27/georgia-supreme-court-find-sex-offender-residency-restriction-an-unconstitutional-taking/), I have received a number of inquiries about what local governments are doing with respect to these types of prohibitions. What follows are select examples from materials presented at the conference. It should be noted that many of these local laws were enacted before the Georgia decision and may not fully consider how these laws would or should be enforced when the child-centered uses are created after the sex offender is already residing at a particular location.

Albany County prohibits registered sex offenders from residing within 1,000 feet of a public or nonpublic elementary or secondary school or child care facility. Broome County’s law prohibits registered sex offenders from maintaining a residence, either permanently or temporarily, within 1,000 feet of any school grounds, and facility or institution primarily used for the care or treatment of persons under the age of 18 or public park. The Town of Chenango, located in the County, also adopted this language. The Village of Franklinville in Cattaraugus County provides that sex offenders shall not newly occupy any real property, acquire any real property by lease or otherwise or establish a place of lodging within ¼ mile of a school, daycare center or playground, park or school grounds. The City of Dunkirk in Chautauqua County prohibits registered level 2 and 3 sex offenders from residing within 1,000 feet of a public or private school, a nursery school, pre-school, child care facility, playground or park. The Town of Amherst in Erie County has a similar law. The Village of Depew and the Town of Aurora in Erie County use 1,500 feet rather than 1,000 feet as the measure of distance for residency restrictions. The Town of Lancaster, also in Erie County, 1,500 is used for the residency restriction and in addition to schools listed above, it prohibits sex offenders from residing near teen clubs, ten centers, Boy & Girls Clubs, YMCA facilities, town parks and playgrounds and any other structure or open space where minors congregate for sponsored, programmed activities and any community centers where minor congregate. Restrictions in the Town of Cheektowaga and the Village of Sloan include dance halls and skating rinks, and the Town of Elma chose to use 2,000 for their distance requirement. The Towns of Brandt and Eden as well as the Village of Blasdell add a prohibition on residency within 1,500 feet of a church which operates any child or youth centered program, and the Town of Hamburg restricts residency within 1,500 feet of swimming pools. The Village of East Rockaway in Nassau County prohibits registered sex offenders from living within 1,000 feet of ay school, place of worship, child day-care center, community center, public library, public park, playground and other recreational facility as well as another registered sex offender. The Village of Waterloo in Seneca County adds a residency restriction near land operated as a camp. A number of the local laws also prohibit registered sex offenders from maintaining employment within 1,000 feet of specified areas where children are likely to congregate (see for example Rockland and Saratoga County laws).

The outstanding (and more detailed) compilation of local laws was put together by Corey Auerbach, Esq. of the Association of Towns and Lorraine Felegy, Esq. of the Office of Sex Offender Management at the NYS Division of Criminal Justice Services. ..more..



Reader's Comments are interesting:

by Michael Storac: What is amazing about all these restrictions is that they make no distinction between those on parole with those free and clear of the correctional system. In fact, virtually ALL of these ordinances should be illegal, based concurrences and dissents from a US Supreme Court decision made in 2002.

The actual decision, “Smith vs Doe”, had to do with the constitutional existence of the Internet Sex Offender Registry itself. The decision is located here:

http://www.supremecourtus.gov/opinions/02pdf/01-729.pdf

Although the ruling was 6-3 in establishing that the Internet Registry was not a violation of the constitutional rights of registered sex offenders, several warnings and inferences could be drawn from even the concurrences. For instance, David Souter, one of the concurrences, actually wrote his OWN concurrence, which is unusual for Sumpreme Court decisions. He warned that, in itself, that the registry was not a violation of registrants’ rights, but ONLY because the registrants’ residency, employment, and free travel were not restricted. Had any of those conditions applied, it certainly would have been a violation. Clarence Thomas also weighed in on this issue and offered a similar, abbreviated concurrence.

In other words, if residency restrictions, GPS monitoring, buffer zones, employment restrictions, vehicle registration, driver license markings, and other forms of extra-registry legislation were in place in 2002, the Supreme Court would most assurredly have ruled AGAINST the Internet Registry, and in addition, would have ruled that such laws violate the First, Fourth, Fifth, Eighth, and Fourteenth amendments of the US Constitution, as well as the Ex Post Facto clause with regard to extra punishment.

Are all these cities prepared to withstand the hundreds of millions of dollars at stake in lawsuits once the Supreme Court rules that such laws are invalid? Perhaps even to deny the registry itself (rendering the Adam Walsh Act unconstitutional as well)?

Not too many communities have deep pockets, and insurance companies had best be aware of such potential damage when the ruling is established by SCOTUS.


by AsphaltVoyager Interesting point Michael. In addition, consider the case of someone who moves into a state that requires registration for 10 years for its citizens who committed certain offenses. The new resident, having been required to register in the prior state had been registering for 12 years. Upon arrival at his new state, he is informed that he must register for life due to his status as an offender coming from out of state. This is a 15th amendment violation. Had he originally committed his offense in the new state, his obligation to register would have expired two years previous. The new state’s law, however, creates a sub-class and treats them as special cases. Many states have such addenda to their registry laws, some of which simply concede authority to the state in which the offense was committed. No matter what the form of these additional requirements regarding new residents with old convictions, they are in violation of the Equal Protection Amendment. These states are in serious jeopardy of having to rewrite their entire SOR law. The question only remains to be seen whether someone who is undergoing this special case treatment will have the financial wherewithal and the guts to challenge the states using such practices. The states know they can get by with passing such laws simply because it is already difficult for a convicted felon to obtain meaningful employment, and extremely more so if the conviction is for a sex offense. Lack of employment means lack of financial clout, rendering them incapable of being a challenge to the state’s authority.

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