NY- State judge throws out Rockland's housing law for sex offenders

1-23-2009 New York:

A state Supreme Court judge sitting in Rockland today invalidated Rockland's law restricting where sex offenders can live.

Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.

Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.

Kelly nullified Rockland's 2007 law. As the first decision on the pre-emption issue, Kelly's ruling becomes precedent and could nullify 80 similar laws across the state that establish some boundaries in which sex offenders cannot live.

In Rockland, for example, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities.

Kelly's decision would dismiss misdemeanor charges against up to 13 sex offenders living in prohibited areas.

Kelly ruled in a case involving Monsey residents Yoel Oberlander and Betzalel Dym, both of whom were charged in August 2007 with violating their probation and the county law.

Oberlander's lawyer, David Goldstein, raised the legal arguments. He said the 1,000 feet or any boundary is arbitrary and meaningless as far as protecting the public.

"The state law of letting probation officers use their discretion is more effective," Goldstein said. "The county law was an over-reaction with a nebulous 1,000-foot magical line."

He said Kelly's decision on the pre-emption issue has implications statewide and could overrule other residency laws.

County Executive C. Scott Vanderhoef said he would await County Attorney Patricia Zugibe's recommendation on whether to appeal. Vanderhoef said the county law is not workable and the state needs to take control of the issue and set standards.

The county has 30 days to file an appeal.

Zugibe said today she had not formulated a position yet and was reviewing Kelly's decision. She said that while Kelly's decision seems solid on the law, she said other judges could decide differently on similar cases before them.

"This is one court's decision," she said. "I can't be so presumptuous to know what other judges will be doing."

Rockland Legislature Ed Day, R-New City, who sponsored the county law, said today that he's disappointed in the decision but stands by the law. ..News Source.. by Steve Lieberman