Supreme Court, Dutchess County, April 2, 2019

Douglas H. Hyson, petitioner pro se.

Letitia James, Attorney General, Poughkeepsie, for respondent.

Petitioner brings this proceeding seeking a writ of habeas corpus challenging the legality of his detention at the Green Haven Correctional Facility. He was convicted in 1979 of criminal sexual conduct in the first degree and kidnapping of a female under 16 years of age. [*2]For these offenses he was eventually adjudicated as a level three sex offender. Petitioner was released in 2002. In 2014 he was convicted of burglary in the second degree and sentenced to a term of 31/2 years' imprisonment with five years' postrelease supervision. Petitioner was released to parole in December 2016 but violated parole. His 31/2 year sentence for his burglary conviction ended on December 23, 2018. Shortly prior to that date, respondent advised him that he would not be released and would be housed in a residential treatment facility until he could find housing compliant with the Sexual Assault Reform Act (SARA), which, among other things, prohibits certain offenders released on parole from residing within 1,000 feet of a school. (See Executive Law § 259-c [14]; Penal Law § 220.00 [14] [b].) Petitioner then commenced this proceeding pursuant to CPLR article 70 seeking a writ of habeas corpus alleging that his incarceration beyond his release date is illegal. He asserts that he is not subject to SARA's housing requirements because he is serving a sentence for burglary in the second degree, a crime not enumerated in Executive Law § 259-c (14). Respondent maintains that the language in that statute requires that the school grounds housing restriction applies to all level three sex offenders being released to parole supervision, not only those currently serving a sentence for an enumerated offense. Respondent claims that petitioner's placement at Green Haven's residential treatment facility is authorized by Executive Law § 259-c because petitioner did not have a residence compliant with SARA.

The relevant provision of Executive Law § 259-c (14) provides:

"[W]here a person serving a sentence for an offense{**63 Misc 3d at 841} 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 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." (Emphasis added.)

Petitioner asserts that the term "such person" in the statute qualifying those persons designated a level three sex offender refers only to a person currently serving a sentence for one of the enumerated offenses in the statute. Under this interpretation, the school grounds mandatory condition would be imposed only on inmates currently incarcerated for an offense for which they were designated a level three sex offender. This interpretation has been adopted by the Appellate Division, Third Department in two recent decisions.

In People ex rel. Negron v Superintendent, Woodbourne Corr. Facility (170 AD3d 12 [3d Dept 2019]), the petitioner was sentenced to 1 to 3 years for a conviction of sexual abuse and was adjudicated a level three sex offender. In 1998 and again in 2005 he was convicted of attempted burglary in the second degree, and was ultimately sentenced to 12 years to life. In 2016 he was granted parole subject to SARA compliant housing. The Appellate Division, Third Department reversed and granted the petition (after converting it to a CPLR [*3]article 78 proceeding because petitioner had been released to SARA compliant housing during the pendency of the proceedings). As the Negron Court held, the plain language of the statute must be followed. It clearly provides "where a person serving a sentence." The meaning is unambiguous. It does not say "where a person has served a sentence for a level three sex offense" or "where a person has been convicted of a level three sex offense." The legislature could have worded it differently but did not. The petitioner at bar is not "such person" as he is not serving a sentence for one of the defined offenses. (See also Matter of Cajigas v Stanford, 169 AD3d 1168 [3d Dept 2019].)

The Appellate Division, Fourth Department has taken a different position and agrees with respondent's interpretation of{**63 Misc 3d at 842} the statute. (See People ex rel. Garcia v Annucci, 167 AD3d 199 [4th Dept 2018] [concluding that Executive Law § 259-c (14) applies to all level three sex offenders whether currently serving that sentence or not].) This court respectfully disagrees and finds that interpretation to be without basis.

While the Appellate Division, Second Department in which this court sits has yet to address the issue, this court agrees with the Appellate Division, Third Department's interpretation of Executive Law § 259-c (14). It would take legislative action to require the Department of Corrections and Community Supervision and our Parole Board to impose the condition of SARA compliant housing upon every convicted level three sex offender. This court is without that authority. Thus, for the reasons set forth in People ex rel. Negron v Superintendent, Woodbourne Corr. Facility (170 AD3d 12 [3d Dept 2019]), it is hereby adjudged that Executive Law § 259-c (14) is inapplicable to petitioner under the facts presented. As respondent does not contest the petitioner's allegation that the sole basis for imposing the SARA housing restriction was due to his prior conviction, and since respondent has not produced any evidence, either in writing or by testimony or argument upon the return of this petition, of a basis for respondent to require the petitioner to remain in a residential treatment facility, it is ordered that the petition for a writ of habeas corpus is granted and the petitioner shall immediately be released to postrelease supervision.