31 Misc. 3d 919
N.Y. Sup. Ct.2011Background
- Petitioner Ariel Berlin, 77, resides at 250 West 85th Street, Manhattan, NY.
- In July 2005 Berlin committed sexual abuse of a child, leading to a 2006 conviction and five-year imprisonment plus three years’ postrelease supervision.
- Prior to release, Berlin was adjudged a level one offender but was prohibited from living within 1,000 feet of schools under SARA constraints.
- Upon release on October 1, 2010, Berlin signed mandatory and special parole conditions prohibiting entry within 1,000 feet of school grounds.
- Berlin’s Manhattan apartment lies within 1,000 feet of school grounds, making return to that residence a potential parole violation and reincarceration.
- Petition seeks to enforce return to his apartment on the grounds that applying the 1,000-foot rule is an unconstitutional ex post facto and violates due process and right to travel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto: does 2005 SARA amendment apply punitive restraints to Berlin? | Berlin argues amendment is punitive ex post facto. | Parole Division argues it is nonpunitive public-safety restriction. | Ex post facto violation; statute applied to Berlin is punitive. |
| Civil vs. punitive nature of residency restriction as applied | Civil regulatory intent is not satisfied; effectively bans Manhattan. | Law aims to protect public safety and prevent reoffense. | Even if civil in theory, applied to Berlin is punitive in effect. |
| Individualized assessment adequacy | No individualized threat assessment; no exception for Berlin’s health/age. | General public safety rationale suffices; residency is a conditional parole measure. | Lack of individual assessment renders statute punitive as applied. |
Key Cases Cited
- Commonwealth v Baker, 295 S.W.3d 437 (Ky. 2009) ( residency laws deemed punitive when lacking individualized assessment)
- State v. Pollard, 908 N.E.2d 1145 (Ind. 2009) ( residency restrictions evaluated for nonpunitive purpose; emphasis on public safety)
- F.R. v. St. Charles County Sheriff’s Dept., 301 S.W.3d 56 (Mo. 2010) ( corroborates ex post facto challenges to residency rules)
- Harnett, 16 N.Y.3d 200 (N.Y. 2011) (SOMTA not a penal statute; court distinguishes civil/remedial vs punitive intent)
- Calder v. Bull, 3 U.S. (3 Dall.) 386 (U.S. 1798) (ex post facto constitutional framework; civil vs punitive)
- Smith v. Doe, 538 U.S. 84 (U.S. 2003) (framework to assess criminal punishment vs regulatory schemes for ex post facto)