NY- Local sex offender law shot down

7-15-2009 New York:

Judge says Albany County residency law is invalid because state statute preempts it

ALBANY -- A state judge has struck down the Albany County sex offender residency law, declaring it invalid because it's preempted by state statue, and, in effect, halting enforcement of it.

The long-awaited ruling by Acting State Supreme Court Justice Roger D. McDonough -- signed Friday and made public Tuesday -- paves the way for the three-year-old county law that prohibits convicted Level 2 and 3 sex offenders from living within 1,000 feet of schools or child care facilities to proceed to the next phase of the legal challenge.

Both county lawmakers who support the measure and Albany attorney Terence Kindlon who challenged such laws in Albany, Rensselaer and Washington counties want to see the issue played out in the state's appeals courts.

McDonough's ruling comes just days after a decision by Acting State Supreme Court Justice Henry Zwack in Rennselaer County that knocked out that county's law on the same basis -- that state statute preempts the local law. The Rensselaer law was tougher, restricting residency to 2,000 feet of a school or day care center.

The Albany Police Department's Children and Family Services Unit has been enforcing Albany County Local Law No. 8 since its passage by the County Legislature in July 2006. The three convicted sex offenders on whose behalf Kindlon sued the county were all charged with violating the law, a misdemeanor.

"We haven't had a chance to read the ruling, and, obviously, it's something we want to talk with the district attorney about regarding further enforcement down the road," city police spokesman Detective James Miller said Tuesday.

Attorney Kathy Manley, an associate of Kindlon's who worked with him on the lawsuits, said, "It's becoming more and more clear that the counties and towns can't pass their own laws, when it's up to the state to act ..."

"Now the law is invalid in Rensselaer and Albany counties, so it can't be enforced," she added.

Manley said local laws push people "into motels away from treatment, away from services where they can walk and away from families."

County lawmakers on both sides of the aisle want an appeal.

"I'm really let down over this," Albany Democrat Daniel McCoy said. A city firefighter and father of three, he was a lead sponsor of the measure after learning a convicted sex offender lived near his kids' elementary school.

He said the next step is to appeal immediately to the Appellate Division.

"I'm gong to ask the county attorney tomorrow to start an appeals brief," McCoy said, noting he's also "going to check with the state Senate and Assembly to see what they have and what bills may contain sex offender legislation."

Christine Benedict of Colonie, Republican minority leader, agreed. She favors an appeal and a review of the state law. "I think that the state should take another look at theirs."

She said the original law proposed by former Gov. George Pataki "was really strong," and it passed the Senate but not the Assembly. Eventually, a watered-down version passed both houses.

Benedict favors the town of Colonie's proposal that would limit the number of sex offenders a hotel or motel could house. That measure is slated to be introduced at Thursday's Town Board meeting.

In his legal papers, Kindlon argued state law trumps those enacted by local governments. Counties throughout the state have adopted residency laws, and earlier this year a state judge struck down a Rockland County law.

McDonough, in his five-page ruling, said arguments by the three sex offenders "demonstrate that the state has expressed a desire to legislate in the field of sex offender monitoring, regulating and management, thereby preempting and prohibiting localities from doing so."

County lawmakers, on the other hand, argued state law applies only to sex offenders who are on parole or probation, while the county law applies to all convicted offenders, including those who no longer are under supervision.

"We took the position that the state didn't address those unsupervised sex offenders, and therefore the local ordinance, we viewed, as not preempted by the state legislation but supplemental to it by embracing those unsupervised sex offenders," said Albany attorney Thomas J. O'Connor who represented the county.

McDonough found the lawmakers' "argument to be unpersuasive" that state law doesn't apply to sex offenders no longer under supervision. The judge referred to a set of laws, enacted by the state legislature in September 2008 and which took effect in January. A review of the so-called Chapter 568 "reveals that it also addresses the residential status of certain 'unsupervised sex offenders,'" the judge wrote.

Specifically, the state laws address the "residential status of level two and level three offenders who are seeking shelter assistance from local social service officials," and is in no way limited to those on parole, probation or subject to post-release supervision.

"It is therefore manifestly clear that the Legislature enacted legislation that significantly impacts the residential status of both supervised and unsupervised level two and level three sex offenders," the judge decided.

O'Connor said he had to discuss the possibility of an appeal with county officials. It's a matter "that is appropriate for the courts to determine because there are reasonable people on both sides of the issue," he said.

O'Connor was certain, though, that enforcement has to cease. "It's been declared invalid, and until, or if and when it's reversed, we have to respect Judge McDonough's decision," he said.

Legislator McCoy wants the Court of Appeals, the state's top tribunal, to have the final say. "Hopefully, they will overturn the lower courts, and if they don't, I will lobby the hell out of the Senate and Assembly to pass a law that applies to everybody and protects our children." ..Source.. by CAROL DeMARE, Staff writer