994 N.Y.S.2d 256
Massapequa Park Justice Court2014Background
- Defendant, a registered sex offender, was charged on Oct 2, 2012 with violating Village Code § 279-3 (residency restrictions) by residing within one mile of a school in Massapequa Park.
- He owned and resided at 117 First Avenue prior to the enactment of § 279-3 and prior to his conviction and probation.
- Village Code § 279-3 prohibits establishing residence within a 1-mile radius of schools/parks; § 279-6 had exempted preexisting residents until its repeal.
- Probation conditions originally required residence approval and distance restrictions from schools; a 2014 order modified outdoor maintenance times but left proximity concerns.
- Village Board repealed § 279-6 on Aug 13, 2012, signaling legislative intent to apply § 279-3 to preexisting residents as well, with § 279-8 providing penalties.
- Court’s procedural posture involved evaluating facial sufficiency, retroactivity, preemption, and constitutionality of § 279-3 as applied to defendant; ultimately the charge was dismissed on preemption grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 279-3 may be applied to defendant given probation supervision. | People argue that § 279-3 applies broadly to all offenders regardless of probation. | Kramer contends § 279-3 is inapplicable due to probation supervision and preexisting residence. | Preemption leads to dismissal; § 279-3 preempted by Correction Law § 6-C as applied to probationers. |
| Whether the accusation is facially sufficient and properly pleads “resides” within restricted area. | Accusation should reflect that defendant resides within restricted area; pleading may permit interpretation as ongoing residency. | Pleading insufficient to show establishment of illegal residency; needs clearer facts. | Pleading deemed facially sufficient to charge residency within restricted area; court reserves fact-finding for trial. |
| Whether retroactivity applies to the grandfather provision and notice requirements. | Local enactment intended to regulate preexisting residencies; grandfather provision should be read broadly. | Retroactivity concerns and lack of notice undermine application. | Retroactivity not applied retroactively; notice and relocation provisions render § 279-3 prospective in effect. |
| Whether § 279-3 is unconstitutional as applied (ex post facto, vagueness, substantive rights, takings). | § 279-3 violates ex post facto, vagueness, and rights to live where one chooses. | Local restriction infringing on rights; state preemption controls; potential constitutional issues. | Constitutionality not reached; court grants preemption-based dismissal; constitutional issues not addressed. |
Key Cases Cited
- People v Diack, 22 NY3d 1155 (N.Y. 2014) (state preemption and residency restrictions inapplicable to certain offenders not on probation; guidance on local vs state regulation)
- Terrance v City of Geneva, 799 F. Supp. 2d 250 (WDNY 2011) (federal preemption and comprehensive state scheme over sex offender residency)
- Moore v County of Suffolk, 851 F. Supp. 2d 447 (EDNY 2012) (preemption considerations in federal challenge to local residency laws)