2-19-2009 New York:
ALBANY -- A City Court judge has dismissed a charge against a convicted sex offender accused of violating a county law that limits where sex offenders can live, ruling the county's law usurps state authority.
The decision this week by Judge Thomas K. Keefe runs counter to one by his colleague, Judge Rachel Kretser, last summer and would seem to deepen the legal uncertainty surrounding more than 80 similar laws that have popped up across the state.
A constitutional challenge to the Local Law No. 8 of 2006 is pending in state Supreme Court. On Jan. 22, a judge struck down a nearly identical measure in Rockland County for the same reasons as Keefe.
Keefe's decision cites the Rockland case and echoes that judge's view that the state has already made clear its intent to regulate where sex offenders can live.
The decision also refers to efforts in Colonie to evaluate whether the town should pass its own law to prevent clustering of sex offenders in motels.
Albany County's law bans Level 2 and 3 sex offenders from living within 1,000 feet of schools and day care facilities. It was under that statute that John Blair was charged last May. His attorney, assistant public defender Julianne Girard, moved to dismiss the misdemeanor on the grounds that the county law is pre-empted by state authority. Keefe agreed.
Last July, Kretser upheld the charges against four men in a similar situation to Blair, finding the county law "has not been pre-empted by the New York law, either expressly or by implication."
The conflicting decisions from the same court could send mixed messages to city police.
Attorney Terence Kindlon, whose firm is suing the county pro bono, said he believes it would be "more intelligent than not to refrain from prosecuting these cases."
"I don't think the police are going to be playing judicial roulette here in an effort to convict half of the people all of the time," Kindlon said.
Detective James Miller, a spokesman for the Albany Department of Public Safety, said officers in the city will keep making arrests.
"Until told otherwise, we'll continue to enforce it," he said. He echoed the position of the district attorney's office, which will continue to prosecute "unless and until the law is changed," said spokeswoman Heather Orth.
Mary Witkowski, a county spokeswoman, declined to comment on Keefe's ruling but reiterated the county's stand that residency restrictions need to be addressed at the state level.
The residency issue is unlikely to be resolved before heading to an appeals court. ..News Source.. by JORDAN CARLEO-EVANGELIST, Staff writer
Court decision is available here on The Parson's Net
February 19, 2009
NY- Albany judge says sex offender law usurps state
January 23, 2009
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
July 8, 2008
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
