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By Jill K. Sanders, Esq.

Imagine you’ve been told you have a date on which you’ll be released from prison. However, that day comes and goes, and you’re still in prison. Why? Because the prison won’t approve your release address – they say it’s too close to a school. In New York, the Sex Assault Reform Act includes a residency restriction. Specifically, it prohibits certain registered sex offenders from living near schools. But what if you’re not serving a sentence for a sex offense? Now, the Court of Appeals of New York has weighed in.

Background on Residency Restriction

In 1996, the Sex Offender Registration Act (“SORA”) went into effect in New York. Thereafter, in 2000, the state Legislature passed the Sexual Assault Reform Act (“SARA”) which, among other changes, added subdivision 14 to Executive Law § 259-c. Specifically, this statute bars certain registered sex offenders from entering school grounds.

Later, in 2005, the state Legislature broadened the definition of “school grounds” to included publicly-accessible areas within 1,000 feet of a school. Additionally, the amendment also broadened the class of registrants to whom the statute applied. The text of the statute now reads as follows:

[W]here a person serving a sentence for a[ registrable sex] offense … and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender pursuant to [SORA], is released on parole or conditionally released pursuant to subdivision one or two of this section, the board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds … .

Discussion

In 1994, Raymond Negron was convicted of Sexual Abuse in the First Degree. After serving his sentence, he was designated a Level 3 registrant at his SORA hearing. Thereafter, in 2005, Mr. Negron was convicted of Attempted Burglary in the Second Degree. For this crime, he was sentenced to a term of prison with possible parole after 12 years.

In 2016, Mr. Negron was granted release to parole. However, he was not released from prison. Although Mr. Negron’s burglary conviction is not a registrable sex offense, because of his Level 3 designation, the Board determined he was subject to the SARA condition. Unfortunately, Mr. Negron was unable to find a residence address in New York City that was not more than 1,000 feet from a school. As such, Mr. Negron continued to be held in prison.

Issue of Residency Restriction

As of 2018, there are more than 900,000 people on sex offender registries in the United States. Notably, many policies in creating such registries were created based on false sex offense recidivism data. Regarding residency restrictions, researchers have found such constraints not to be a deterrent to recidivism.

Yet in New York, DOCCS interpreted the SARA residency restriction to apply to any person on parole who was also a Level 3 registrant. This was regardless of the crime for which the person was serving parole.

In contrast, people like Mr. Negron argued that DOCCS had mis-interpreted the statute. Instead, they argued that the SARA residency restriction only applied to a persons currently serving sentences for sex offenses where (1) the victim was under 18 or (2) the person has been designated a Level 3 registrant.

The Court’s Holding

In the appeal of Mr. Negron’s case, the Court of Appeals held that the SARA condition is mandatory only for Level 3 registrants serving a sentence for an enumerated offense. Specifically, the plain language of the statute supports this finding. Moreover, the Court stated the statute “properly read as making level three sex offender status, like an underage victim, an aggravating factor warranting mandatory imposition of the school grounds condition only where someone is released on parole from a sentence for one of the enumerated offenses.”

References:

• Correction Law Article 6-C, §§ 168 et seq. Available at: https://www.nysenate.gov/legislation/laws/COR/A6-C (last accessed Dec. 9, 2020).
• Executive Law § 259-c. Available at: https://codes.findlaw.com/ny/executive-law/exc-sect-259-c.html (last accessed Dec. 9, 2020).
• People ex rel. Negron v. Superintendent, 2020 NY Slip Op. 06935 (2020). Available at: https://www.nycourts.gov/ctapps/Decisions/2020/Nov20/76opn20-Decision.pdf (last accessed Dec. 9, 2020).
• M. Ellman & T. Ellman, “‘Frightening and High’: The Supreme Court’s Crucial Mistake About Sex Crime Statistics.” Constitutional Commentary (2015). Available at: https://www.prisonlegalnews.org/media/publications/Frightening%20and%20High%20-%20Supreme%20Courts%20Crucial%20Mistake%20About%20Sex%20Crime%20Statistics,%20Ellman,%202015.pdf (last accessed Dec. 9, 2020).
• Levenson, K. Zgoba, and R. Tewksbury, “Sex Offender Residence Restrictions: Sensible Crime Policy or Flawed Logic?,” Federal Probation (2007). Available at: https://www.uscourts.gov/sites/default/files/71_3_1_0.pdf (last accessed Dec. 9, 2020).