Supreme Court, Wyoming County, July 27, 2018

Center for Appellate Litigation (Jan Hoth of counsel) for relator.

Barbara D. Underwood, Attorney General (George Michael Zimmermann of counsel), for respondent.

By petition for a writ of habeas corpus verified on May 22, 2018, Andre Durham challenges his continued incarceration beyond his conditional release date of December 17, 2017. The relator contends that he is entitled to immediate release to parole supervision. Respondent requests that the petition be denied upon the affirmation and return of George Michael Zimmermann, Assistant Attorney General, dated June 19, 2018. Relator's counsel has also submitted a reply affirmation dated June 20, 2018.

The relator has a level three sex offender risk level as a result of his previous conviction in 2007 for sexual abuse in the third degree. He is currently serving an aggregate indeterminate sentence for convictions he received in 2015 and 2017. It is not disputed that he reached the conditional release date for his current aggregate sentence on December 17, 2017 (Penal Law § 70.40 [1] [b]). He remains in prison, however, because no residence acceptable to the Parole Board has yet been found for him.

Executive Law § 259-c (14) makes it a mandatory condition of parole for certain parolees [*2]that they shall not "knowingly enter[ ]" within 1,000 feet of a school. Obviously, a parolee subject to this mandatory condition cannot be permitted to reside within a prohibited zone. This restriction has made it significantly more difficult to find acceptable living quarters for indigent parolees subject to the mandatory condition. In densely populated areas—such as Manhattan where the relator is due to be conditionally released—few shelters exist for indigent parolees which are not within 1,000 feet of school property. The respondent contends that Executive Law § 259-c (14) required that the mandatory condition be imposed on the relator because he is a level three sex offender, and the Parole Board, therefore, has acted properly in delaying the relator's release until an acceptable residence outside of the 1,000-foot zone can be found for him. Relator's counsel argues that the Parole Board's reading of section 259-c (14) is "irrational." She contends that, by its terms, section 259-c (14) does not apply to the relator because he is not currently serving a sentence for one of the crimes designated in the statute. She further asserts{**63 Misc 3d at 194} that the Board abused its discretion and exceeded its authority when it chose to impose the mandatory condition on the relator.

Initially, the court notes that the relator is not entitled to habeas corpus relief because he remains subject to a valid sentence. It is well settled that an individual subject to an unexpired prison term may be held in prison pending the establishment of an approved residence, even though that person is otherwise entitled to be released to parole supervision (see People ex rel. Beam v Hodges, 286 AD2d 936 [4th Dept 2001]; Matter of Billups v New York State Div. of Parole, Chair, 18 AD3d 1085 [3d Dept 2005]; People ex rel. Bernzott v Murray, 12 AD3d 1102 [2004]; Matter of Breeden v Donnelli, 26 AD3d 660, 660-661 [3d Dept 2006]). "Because petitioner is not entitled to immediate release, habeas corpus relief does not lie" (Beam at 937). Accordingly, in response to requests made by both the relator and the respondent in the event habeas relief is found to be inappropriate, the court will convert the matter pursuant to CPLR 103 (c) and examine whether the petition states a basis for relief pursuant to CPLR article 78.

Upon review, the court finds that the Parole Board's reading of the statute is not irrational. Rather, the Board's reading is consistent with the arguably ambiguous text of Executive Law § 259-c (14). In pertinent part, the statute reads as follows:

"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."

With the repetition of the word "person" in the quoted passage, the drafters have indicated their intention that the section shall apply to two types of "person(s)" when "released" to parole; namely, it shall apply to "a person serving a sentence" for one of the listed offenses committed against a victim who was under the age of 18 at the time, or to a "person [who] has been designated a level three sex offender." Thus, the statute requires the imposition of the mandatory condition upon parolees who fall within either of two categories—those who are serving a sentence for a designated offense which involved{**63 Misc 3d at 195} a victim under the age of 18, and those who are level three sex offenders. The relator is subject to the mandatory condition via the latter category.

The court notes that this reading is supported by the Bill Summary and the Sponsor's [*3]Memorandum attached to the legislation which added the phrase "or such person has been designated a level three sex offender pursuant to subdivision six of section 168-l of the correction law" to Executive Law § 259-c (14) in 2005 (L 2005, ch 544, § 2). The Bill Summary flatly declares that the amendment "[p]rohibits any level three sex offender placed on conditional release or parole from entering upon school grounds or certain other facilities where children are cared for" (Summary, 2005 NY Assembly Bill A8894 [emphasis added]). In addition, the Sponsor's Memorandum states that the "purpose" of the legislation is "[t]o prohibit sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender" and the "justification" for the bill is that "[t]here is 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" (Sponsor's Mem, Bill Jacket, L 2005, ch 544 at 4). Finally, the Sponsor's Memorandum summarizes the effect of the language added by the legislation to Executive Law § 259-c (14) in the following terms: "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" (id.).

The court observes that the list of designated offenses found in the section is not a complete list of all sex offenses (see Correction Law § 168-a [2], [3]; compare Executive Law § 259-c [15]). Therefore, had the legislature intended that the effect of the amendment should be solely to extend the requirement of the mandatory condition not only to persons serving a sentence for a designated offense whose victim was under age 18, but also to persons serving a sentence for a designated offense who are level three sex offenders, it would not be quite accurate for the Bill Summary to state that the amendment prohibits "any level three sex offender" parolee from entering school grounds. Similarly, the Sponsor's Memorandum would not state categorically that the amendment requires that parolees "designated as level three sex offenders refrain from entering upon school{**63 Misc 3d at 196} grounds." If the amendment were not intended to apply generally to all paroled level three sex offenders, then one might expect that the Sponsor's Memorandum would have acknowledged somewhere that its scope was limited to level three parolees who also happen to be currently serving a sentence for a designated offense.

Unquestionably, the drafters could have stated their intention more clearly in the text of the statute. Indeed, the court notes that Executive Law § 259-c (15), relating to Internet access restrictions for certain parolees, uses language almost identical to the relevant passage in section 259-c (14), but that subdivision clearly applies only to "a person [who] is [currently] serving a sentence" for a sex offense. The comparable passage in subdivision (15) reads as follows:

"where a person is serving a sentence for an offense for which registration as a sex offender is required pursuant to subdivision two or three of section one hundred sixty-eight-a of the correction 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 or the internet was used to facilitate the commission of the crime, is released."

The court finds it notable that, in subdivision (15), the drafters have placed a comma before the words

"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 or the internet was used to facilitate the commission of the crime."

The effect of the comma in subdivision (15) is to [*4]make clear that the victim being under 18, the offender being a level three and the Internet being used to facilitate the crime define sub-criteria to be applied together to determine to whom the condition shall be applied among those parolees who are serving a sentence for a sex offense. In other words, the language following the comma in subdivision (15) creates three subcategories within the larger category. In contrast, when the phrase "or such person has been designated a level three sex offender" appears in subdivision (14) without an analogous comma, it{**63 Misc 3d at 197} does not denote a subcategory. Instead, consistent with the legislative history discussed above, it creates a new, independent category of parolees, in addition to those currently serving a sentence for a designated offense, who are to be subject to the mandatory condition: level three sex offenders, regardless of whether or not their current sentence is for a designated offense.

In concluding that the mandatory condition has been properly applied to the relator, the court rejects the contrary arguments raised by relator's counsel. To the extent that the Dutchess County Supreme Court reached a different conclusion with regard to the interpretation of the statute in the case of People ex rel. Madison v Superintendent, Fishkill Corr. Facility (61 Misc 3d 422 [May 16, 2017]) cited by relator's counsel, the court finds the reasoning of the Dutchess County Supreme Court to be unpersuasive. The court has considered the relator's remaining contentions and finds them also to be without merit.

Now, therefore, it is hereby ordered that the proceeding be, and hereby is, converted pursuant to CPLR 103 (c) from a proceeding falling under CPLR article 70 to a proceeding falling under CPLR article 78; and it is further ordered that the petition is dismissed.