Towns, counties can't restrict sex offenders' homes





ALBANY – Local governments in New York cannot restrict where registered sex offenders live, a ruling Tuesday by the state's highest court said.

The state Court of Appeals threw out a Nassau County law that kept all sex offenders from living within 1,000 feet of a school, arguing that the state's restrictions on those convicted of sex crimes preempt local measures.

The ruling has statewide implications: At least 109 cities, towns and villages and 21 counties have enacted restrictions, the New York Civil Liberties Union said, though some have been repealed or invalidated. Under New York law, only Level 3 offenders — the most severe level — and those on probation or parole are prohibited from being within 1,000 feet of school grounds or a day-care center.

"That such (local) laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders," Associate Judge Eugene Pigott wrote in the decision. "Local governments have, understandably, relied on their police power in furthering that interest. But a local government's police power is not absolute."

The case centered on Michael Diack, a Nassau man who was convicted of possessing child pornography in 2001 and moved within 500 feet of two schools in 2008. The Level 1 offender had served his prison sentence and no longer was on parole when he moved. Nassau County's law, enacted in 2006, applied to all sex offenders.

New York's law prohibits Level 3 offenders and those on parole and probation from knowingly entering school grounds or being in a parked car within 1,000 feet. The courts have interpreted that to mean they can't live within 1,000 feet of a school, either.

The Court of Appeals ruled the state already has "occupied the field," meaning New York has established a statewide law for placing sex offenders and that local laws would "hinder State-wide uniformity concerning sex offender placement," Pigott wrote.

As of mid-2014, Putnam was among the counties that passed countywide restrictions on where sex offenders can live. Rockland previously had restrictions but they were overturned by a court.

Stephen Acquario, executive director of the state Association of Counties, said the ruling "clarifies that it is the state's responsibility to protect our citizens and children from registered sex offenders."

"Some local governments, based on unique circumstances, believe additional safety requirements are in order," Acquario said. "The court ruling prohibits these additional local safeguards."

The court ruled 5-0, overturning a midlevel appeals court ruling. Two of the court's seven judges, Leslie Stein and Eugene Fahey, were confirmed by the Senate after the case had been heard and did not weigh in. New York has 38,123 registered sex offenders, the state Division of Criminal Justice Services said, and 9,238 of them are Level 3.

Kathy Manley, the Albany-based attorney who represented Diack, said she is "glad that we finally put an end to these laws across the whole state."

"They were tremendously counterproductive," she said. "The state clearly has this scheme of laws that regulates sex offenders in a variety of ways."

JCAMPBELL1@gannett.com Twitter.com/JonCampbellGAN