Supreme Court, Orange County, June 30, 2019

Juan Erazo, petitioner pro se.

Letitia James, Attorney General, Poughkeepsie (Jeane L. Strickland Smith of counsel), for respondents.

Petitioner moves for habeas corpus relief.{**64 Misc 3d at 774}

[*2]It is hereby ordered that the petitioner's application is denied and the petition is dismissed.

In this habeas corpus proceeding petitioner argues that he is being illegally detained by respondent New York State Department of Corrections and Community Supervision. Petitioner is currently serving a sentence of 12 years to life for attempted robbery in the second degree. However, petitioner has previously been convicted of rape in the first degree and is a designated level three sex offender. Petitioner remains at Otisville Correctional Facility because he does not have appropriate housing, i.e., Sexual Assault Reform Act (SARA) compliant housing. Petitioner concedes that he is a level three sex offender and that if he was serving a sentence relating to his level three sex offender designation, then he would not be entitled to release. However, petitioner asserts that, since he is not currently serving a sentence related to his sex offender designation, the housing restrictions imposed by SARA pursuant to Executive Law § 259-c (14) are inapplicable and he should be released.

Currently, there is a split between two Appellate Divisions as to whether Executive Law § 259-c (14) applies only to level three sex offenders currently serving a sentence for a sex offense (holding of the Third Department), or to all designated level three sex offenders (holding of the Fourth Department). Neither the Appellate Division, Second Department nor the Court of Appeals has ruled on this issue. This court, while not bound by the precedent of either the Third or Fourth Department, adopts the rationale of the Appellate Division, Fourth Department and holds that Executive Law § 259-c (14) "was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offenders" (People ex rel. Durham v Annucci, 170 AD3d 1634, 1635 [4th Dept 2019], quoting People ex rel. Garcia v Annucci, 167 AD3d 199, 204 [4th Dept 2018]). Further, "as it is uncontested that petitioner is a level three sex offender and did not have a residence that complied with section 259-c (14), he did not establish that he was entitled to immediate release" (People ex rel. Durham v Annucci, 170 AD3d 1634, 1635 [4th Dept 2019]). It is important to recognize that the State has a vested interest in making sure parolees comply with all of the terms and conditions of their release, so that the parolee can successfully be reintegrated into society. If petitioner were released without having{**64 Misc 3d at 775} a residence that complied with section 259-c (14), he would immediately be in violation of the law for failing to comply with his obligations as a level three sex offender. Not only would he be subject to being prosecuted for the same, his violation of the law would subject him to an immediate parole violation in the instant case. Accordingly, the petitioner's application must be denied and the petition must be dismissed.