Supreme Court, Dutchess County, May 16, 2017

Legal Aid Society, Criminal Appeals Bureau, New York City (Lorca Morello of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Poughkeepsie (Jeane Strickland-Smith of counsel), for respondents.

Petitioner Jeffrey Madison was convicted of attempted burglary in the second degree in Broome County, New York, and sentenced to three years' imprisonment followed by five years' postrelease supervision. Petitioner was received into custody of respondent Department of Corrections and Community Supervision (DOCCS) on December 27, 2013, and his maximum expiration date was December 8, 2016 (verified petition ¶ 4; exhibit B). However, petitioner was not released, but rather, "was 'admitted to residential treatment,' at Fishkill Correctional Facility," on the ground that he was subject to the residency requirements pursuant to Executive Law § 259-c (14) (also known as Sexual Assault Reform Act, or SARA), and he therefore must have a SARA-compliant address to which he could be released (verified petition ¶ 5).

Petitioner asserts that this is an arbitrary and capricious interpretation of the statute in violation of his federal and state constitutional rights to due process and equal protection under the law (verified petition ¶ 5). Petitioner argues that he is not subject to SARA, because it only applies to persons "serving a sentence" for an enumerated sex offense, and he is serving a sentence for attempted burglary, which is not an enumerated offense. Petitioner states that DOCCS misinterpreted SARA.

In response, respondent argues that it properly interpreted the statute and that this precise issue has been decided in two recent unreported cases—Matter of Walker v Stanford (Sup Ct, Albany County, June 21, 2016, Ferreira, J., index No. 3921-15) and People ex rel. Negron v Superintendent (Sup Ct, Sullivan County, Feb. 8, 2017, Schick, J., index No. 1673-2016).^[FN*]

It is undisputed that petitioner was adjudicated a level three sex offender under the Sex Offender Registration Act (SORA){**61 Misc 3d at 424} for his 1995 conviction for first-degree rape for which he served, and has long since completed, his sentence of 1 to 3 years' imprisonment. It is also undisputed that attempted burglary is not an enumerated offense under Executive Law § 259-c (14).

The issue at bar is whether the 2005 amendment to Executive Law § 259-c (14) dictates the terms under which petitioner can be released from prison. In 2000, the legislature enacted [*2]Executive Law § 259-c (14) (L 2000, ch 1, § 8), which read:

"14. 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 of the penal law and the victim of such offense was under the age of eighteen at the time of such offense, 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, as that term is defined in paragraph (a) of 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, provided however, that when such sentenced offender is a registered student or participant or an employee of such facility or institution or entity contracting therewith or has a family member enrolled in such facility or institution, such sentenced offender may, with the written authorization of his or her parole officer and the superintendent or chief administrator of such facility, institution or grounds, enter such facility institution or upon such grounds for the limited purposes authorized by the parole officer and superintendent or chief officer. Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender." (Emphasis added.)

According to the title of the act, the legislative intent of the Sexual Assault Reform Act was, inter alia, "to amend the penal law, the executive law and the correction law, in relation to prohibiting certain sex offenders placed on conditional release{**61 Misc 3d at 425} or parole from entering upon school grounds or other facilities where children are cared for" (L 2000, ch 1).

Then, in 2005, the statute was amended to include level three sex offenders:

"14. 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 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 168-l of the correction law, 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, as that term is defined in paragraph (a) of 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, provided however, that when such sentenced offender is a registered student or participant or an employee of such facility or institution or entity contracting therewith or has a family member enrolled in such facility or institution, such sentenced offender may, with the written authorization of his or her parole officer and the superintendent or chief administrator of such facility, institution or grounds, enter such facility institution or upon such grounds for the limited [*3]purposes authorized by the parole officer and superintendent or chief officer. Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender" (Executive Law § 259-c [emphasis added]).

According to the Assembly Memorandum in Support of Legislation, this statute was "amended to require that, as a condition of parole or conditional release, that individuals designated as level three sex offenders refrain from entering upon school grounds or other facilities where children are cared for" (Bill Jacket, L 2005, ch 544 at 4; answer & return, exhibit {**61 Misc 3d at 426}A; Tracy affirmation, exhibit B). The Assembly's Memorandum states further that the justification for the amendment was the recognition of "a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for" (id.).

Although the facts in Matter of Williams v Department of Corr. & Community Supervision (136 AD3d 147, 150-151 [1st Dept 2016], appeal dismissed 29 NY3d 990 [2017]) are distinguishable from the instant case in that the petitioner was adjudicated a level two sex offender, who was being paroled for a conviction of at least one of the enumerated offenses and his victim was under the age of 18, the Court's explanation of SARA's amendment history is instructive. Judge Judith Gische, writing for the First Department, explained:

"SARA was first passed in 2000, only after petitioner was convicted. As originally enacted, it barred sex offenders whose victims were minors from knowingly entering school grounds or a facility or institution that primarily cares for minors. The restriction only applied to sex offenders convicted of certain enumerated offenses and only if the victim had been under the age of 18. It only applied while sex offenders were on parole and still under the custody and supervision of respondent the Department of Corrections and Community Supervision (DOCCS) (L 2000, ch 1, § 8). While the bar on entering school grounds applied at all times of day and night, the bar on entering a facility or institution only applied when minors were present. The law required that the bar be made a mandatory condition of parole. A violation of SARA was a violation of parole. No separate sanction, criminal or otherwise, was specified for a violation (Executive Law § 259-c [14]). There were limited exceptions to SARA's application if the parolee was a student or employee working at the school or institution or had a family member enrolled there.

"Effective September 2005, SARA was amended in two respects. First, the definition of 'school grounds' was broadened to include publically accessible areas within 1,000 feet of school property (L 2005, ch 544, § 2). In expanding the geographical definition of 'school grounds,' SARA incorporated a definition {**61 Misc 3d at 427}already contained in Penal Law § 220.00. Second, SARA's coverage was extended to include sex offenders who are classified as high risk, level three sex offenders under the Sex Offender Registration Act (SORA). Level three sex offenders are subject to the ban regardless of whether any of their victims were minors. Although the statute itself does not restrict the location of a residence per se, the expanded definition of 'school grounds' necessarily operates to restrict places where a parolee may live and travel (People v Diack, 24 NY3d 674, 681-682 [2015]). The law was otherwise unchanged" (136 AD3d at 150-151).

Simply put, the First Department stated that the amended statute now applied to level three sex offenders. However, the remaining question, which was not addressed in Williams, is, "Which level three offenders?" If petitioner in the instant case was being paroled for the crime(s) that resulted in his level three adjudication, there would be no doubt that he would fall under the requirements of this statute. But, he is being released for an attempted burglary—a crime which is not enumerated in Executive Law § 259-c (14).

"Statutory interpretation is an inquiry into legislative intent" (Matter of Luis C., 124 AD3d 109, 112 [2d Dept 2014] [citations omitted]). "The clearest evidence of that intent is in the statutory text" (id. [citations omitted]). "Context, however, is also important: 'inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history' " (id., quoting Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]). "Courts must also respect the principle that a statute is to be construed as a whole" (Matter of Luis C. at 112 [citations omitted]). "Accordingly, 'its various sections must be considered together with reference to each other' " (id., quoting People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]).

Here, as petitioner correctly points out, the plain language of the statute reflects that it is applicable "where a person [is] serving a sentence" for (1) an enumerated crime where the victim is under 18 years old, or (2) has been adjudicated a level three sex offender for that conviction. Reading further in the statute, as this court is required to do, the subsequent language refers back to that specific person "serving a sentence," by referring to him/her four times as "such sentenced offender." The court will neither read beyond the plain words of the statute,{**61 Misc 3d at 428} nor will it decide if there was an omission of a comma before the "or." (See McKinney's Cons Laws of NY, Book 1, Statutes § 253 ["While punctuation is a part of a statute as passed and appears in the roll when filed with the Secretary of State, it is subordinate to the text, and is never allowed to control the plain meaning of the act"].) Any confusion as to the language is a matter that must be resolved by the legislature. To this court, the plain meaning of the statute is clear, and the statute is inapplicable to petitioner under the facts of this case. As such, because the court finds that the statute is inapplicable to petitioner's current sentence and postrelease supervision, respondent's finding otherwise was arbitrary and capricious.

The court is not bound by People ex rel. Negron v Superintendent, and respectfully disagrees with that court's decision and order, as the cases upon which that court relies are factually distinguishable from those here.

In light of the above, the court declines to address any other arguments.

As such, it is hereby ordered that the petition is granted to the extent that the court finds that Executive Law § 259-c (14) is inapplicable to petitioner under the facts presented in this case; and it is further ordered that petitioner is to be released into postrelease supervision as long as he complies with the remaining conditions of his postrelease supervision; and it is further ordered that nothing contained in this decision and order shall be deemed to address or affect any other conditions that have been placed upon petitioner to be released to postrelease supervision, or any requirements he has related to his prior adjudication as a level three sex offender.