NY- Ruling could doom sex offender laws

7-17-2009 New York:

Court says state regulation pre-empts local restrictions

CAPITAL REGION — A state Supreme Court determination invalidating the sex offender residency legislation in Albany and Rensselaer counties could ultimately strike down a similar law passed by Schenectady’s Legislature in 2007.

In his ruling Tuesday, Justice Roger McDonough found the state Legislature had made an attempt at regulating where level 2 and level 3 sex offenders can reside, thereby preempting the Albany County law established in 2006. Essentially, the ruling found that the state Legislature’s regulation of sex offender residency pre-empts any sort of local law aimed at governing the residency of both supervised and unsupervised sex offenders.

Three weeks earlier, a similar sex offender residency law was struck down in Rensselaer County. Acting state Supreme Court Justice Henry Zwack found the local laws were superseded by the Legislature, which “impliedly and expressly preempted the regulation and management of sex offenders, including residency restrictions.”

Schenectady County Attorney Chris Gardner said the ruling won’t immediately affect the county Legislature’s contentious 2007 law, which prevents convicted level 1 and level 2 sex offenders from living within 2,000 feet of facilities that cater to children. He said authorities have worked to ensure sex offenders are properly located throughout the county and the legislation hasn’t been challenged.

“There’s been no need for any arrests,” he said this week. “In talking to police, it seems there’s been voluntary compliance.”

But the fate of Schenectady County’s law will ultimately depend on whether the recent state Supreme Court rulings are challenged in higher courts. If either the Rensselaer County or Albany County decision is challenged at the appellate level and subsequently upheld, Schenectady County’s legislation or any sex offender law in the Third Judicial District would become invalid.

If these cases percolate into the state Court of Appeals — New York’s highest court — the decision would ultimately govern all local sex offender residency laws across the state. Gardner said that means Schenectady will need to wait and see how or if the recent decisions are challenged.

“The high courts will issue a ruling one way or another and the people will live with it,” he said.

Thomas O’Connor, the attorney who represented Albany County in the case, said an appeal is certainly possible. He said the Albany County Legislature will have up to 30 days to file a case with the Appellate Division once the decision is filed with the county clerk sometime in the coming week.

“Some people feel there should be a decision from the appellate court on the issue, which would have a broader authority and make it a much more binding precedent,” he said.

In 2007, Albany defense attorney Terence Kindlon challenged the sex offender laws in Albany, Rensselaer and Washington counties on the basis that his clients were unable to find suitable residency. He argued the state’s parole, probation and prison systems in conjunction with the registry system provided enough regulation for sex offenders, and if deficiencies exist, the Legislature could always enact changes to the law.

“The state looks at it a little more closely than the county laws do, and they look at it in a more reasonable way,” said Kathy Manley, an attorney who helped litigate the cases with Kindlon. “[The state] even said these county laws are counterproductive.”

Meanwhile, officials in Colonie are already contemplating legislation related to sex offender residency that they believe will stand up even if Albany County’s law remains overturned. Town Attorney Michael Magguilli said the town wants to reduce the number of sex offenders being placed in Colonie’s hotels and motels by employing a point system.

Under the legislation, a point system would be established for each lodging, depending on the number of rooms. Hotels with 50 or fewer rooms would be allotted six points, while those businesses with 51 or more rooms would be granted nine points.

Sex offenders would be assessed points equal to their level classification. As an example, a business with fewer than 50 rooms would only be permitted to rent rooms to two level 3 sex offenders, Magguilli explained.

“It’s a law requiring them to run their business responsibly and not let them become a dumping ground for sex offenders,” he said. “We’re not regulating where sex offenders can live. We’re regulating business under specific statutory authority.” ..Source.. by Justin Mason, Gazette Reporter