NY- Sex offender statute upheld

7-8-2008 New York:

Albany County limit on residency affirmed; appeal expected

ALBANY -- A City Court judge on Monday upheld the constitutionality of a county law banning sex offenders from making their homes within 1,000 feet of schools and day-care centers.
City Judge Rachel Kretser rejected claims the law violated four defendants' rights to due process and equal protection under the law and is overly vague and illegally increases punishment after the fact.

Kretser's decision appears to be the first time any court has ruled specifically on the Albany County law, passed July 2006. But it is expected not to be the last.

Kindlon & Shanks, the law firm representing the four men charged in City Court, is also representing several convicted sex offenders in separate-but-related civil lawsuits against Albany County in state Supreme Court.

The cases are still pending before acting state Supreme Court Justice Roger McDonough. Attorney Terence Kindlon said Monday he thinks the last word on the legality of the measures will come from an appeals court.

"My suspicion is that ... regardless of what Judge McDonough decides, the ultimate question is going to be answered by an appellate court, conceivably even the Court of Appeals," Kindlon said, referring to the state's highest court.

McDonough recently declined to grant a temporary restraining order halting authorities from enforcing the measure and is currently considering a preliminary injunction, Kindlon said.

The laws have been passed by counties throughout the state in an effort to keep sex offenders from living close to places where children gather. Schenectady, Saratoga and Rensselaer counties have approved similar measures.

But the local laws have come under fire from civil libertarians and others, in part because they believe they violate constitutional rights and in part because the laws vary from county to county, creating a confusing array of regulations that would change if a person moved less than a mile from, say, Waterford to Cohoes.

In a statement Monday, Albany County District Attorney David Soares, whose office prosecutes those who accused of violating the county residency law, said it's a matter for the state resolve.

"In the absence of a state law, counties have resorted to drafting legislation that pits county against county to see who can draft the toughest legislation," Soares said through spokeswoman Heather Orth, "and then at the end of the day, this is an issue that must be taken up by the New York state Legislature."

A call to the Office of the Albany County Attorney, which also is defending the county against the civil suits, was not immediately returned.

Kretser's decision was dated July 4 and filed Monday in City Court.

The portion dealing with the constitutionality of the law was actually four identical sections of four decisions relating to four separate defendants charged with misdemeanors under the county law. Kindlon's firm represents the defendants -- James Goldston, 62; Michael Simmons, 35; Clark Carter, 40; and Ethan Wray, 50.

Kindlon said he doesn't view Kretser's decision as a setback, just a step in legal ladder with many rungs.

"Lower court judges are not inclined to declare statutes or even local laws to be unconstitutional," he said. "We had fully expected -- from the day that we filed those motions -- there to be an adverse ruling." ..News Source.. by JORDAN CARLEO-EVANGELIST, Staff writer