Supreme Court, Albany County, June 21, 2016

Seymour W. James, Jr., The Legal Aid Society, New York City (Elon Harpaz of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (John F. Moore of counsel), for respondent.

In October 1988, petitioner was convicted of rape in the first degree and sodomy in the first degree. He was sentenced to concurrent terms of imprisonment of 41/2 to 9 years and was conditionally released to parole supervision in July 1996. On February 8, 2005, petitioner was adjudicated a level three sex offender in connection with his 1988 convictions (see Correction Law § 168-l [6] [c]).

Following the expiration of his 1988 sentences, petitioner was convicted and sentenced for a number of other felonies, including burglary in the second degree, grand larceny in the third degree, grand larceny in the fourth degree, criminal possession of stolen property in the third degree, criminal mischief in the third degree and attempted burglary in the third degree. He was most recently released to parole supervision on September 21, 2015 (see answer, exhibit D).^[FN1] Upon his release, respondent found that, because petitioner had been adjudicated{**61 Misc 3d at 173} a level three sex offender, the terms of petitioner's release are subject to the mandatory condition set forth in Executive Law § 259-c (14).

Petitioner commenced this combined CPLR article 78 proceeding and declaratory judgment action in August 2015.^[FN2] In the verified petition, petitioner alleges that respondent has erroneously found that Executive Law § 259-c (14) applies to the terms of his release on parole. Petitioner seeks: (1) a declaratory judgment that "level 3 sex offenders are not subject to Executive Law § 259-c (14) unless they are currently serving a sentence for a designated offense listed in the statute"; and (2) an order that respondent cease applying Executive Law § 259-c (14) to him (petition, wherefore clause). By decision and order dated December 23, 2015, the court denied respondent's pre-answer motion to dismiss the proceeding, or to sever the declaratory judgment action and the CPLR article 78 proceeding. Respondent filed an answer on March 7, 2016, and petitioner has filed a reply.

Executive Law § 259-c (14) was added in 2000 as part of the Sexual Assault Reform Act (hereinafter SARA) (see L 2000, ch 1; People v Diack, 24 NY3d 674, 681 [2015]). Executive Law § 259-c (14) states, in relevant part:

"notwithstanding any other provision of law to the contrary, where a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the penal law 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 subdivision six of section one hundred sixty-eight-l of the correction law, is released on parole or conditionally released pursuant to subdivision one or two of this section, the [*2]board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any{**61 Misc 3d at 174} school grounds, as that term is defined in subdivision fourteen of section 220.00 of the penal law, or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present"^[FN3] (emphasis added).

Importantly, the language highlighted above was added as part of a 2005 amendment to SARA (see L 2005, ch 544).

Petitioner argues that respondent's interpretation of Executive Law § 259-c (14)—that it applies to all individuals who have been adjudicated a level three sex offender—is erroneous and contrary to the plain language of the statute. Petitioner urges that the statute imposes an initial requirement that a person be serving a sentence for a designated sex offense and that it only applies to individuals who are currently serving a sentence for a designated sex offense and either the victim of the offense was under the age of 18 or the individual has been adjudicated a level three sex offender. He asserts that, because his sentences for sex offenses expired in 1996, he does not fall within the statute because he does not meet the initial requirement that he currently be serving a sentence for a designated sex offense.

Upon review, the court finds that petitioner has failed to establish that respondent's application of Executive Law § 259-c (14) to petitioner is arbitrary and capricious or affected by an error of law (see CPLR 7803 [3]) and has failed to establish that he is otherwise entitled to declaratory relief. Importantly, petitioner does not dispute that he has been adjudicated a level three sex offender. In the court's view, respondent's interpretation of the statute as applying to all individuals who have been adjudicated a level three sex offender without regard to the type of offense for which they are serving a sentence is supported by a plain reading of the statute. As originally enacted, the statute covered only one category of persons, namely, those serving a sentence for a designated offense where the victim of the offense was under 18 years old. The language "or such person has been designated a level three sex offender pursuant to subdivision six of section one hundred sixty-eight-l{**61 Misc 3d at 175} of the correction law" was added several years later (Executive Law § 259-c [14]). Importantly, in both the original and amended versions of the statute, there is no comma after the phrase "where a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the penal law." (Id.) This suggests that the legislature intended the phrase to include the words "and the victim of such offense was under the age of eighteen at the time of such offense" and, through the 2005 amendment, intended to add a new, separate and distinct category of persons covered by the statute. (Id.)

Respondent's interpretation of the statute is also supported by the legislative history of the 2005 amendment to the statute (see Assembly Introducer's Mem in Support, Bill Jacket, L 2005, ch 544 at 4 [stating that the purpose of the amendment is to "prohibit sex offenders placed on [*3]conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender"]). The court also notes that the Court of Appeals has characterized the 2005 amendment to SARA as one which simply extended the mandatory condition to level three sex offenders (see People v Diack, 24 NY3d at 681; see also Matter of Williams v Department of Corr. & Community Supervision, 136 AD3d 147, 151 [1st Dept 2016]), and lower courts have interpreted Executive Law § 259-c (14) as requiring imposition of the mandatory condition based solely upon the fact that a person is a level three sex offender (see People ex rel. Johnson v Superintendent, Fishkill Corr. Facility, 47 Misc 3d 984, 987 [Sup Ct, Dutchess County 2015]).

As such, the court finds that petitioner has not established his entitlement to the relief sought, and his petition must be dismissed.

Based upon the foregoing, it is ordered and adjudged that the petition is in all respects dismissed.