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New York Local Governments’ Sex Offender Residency Restrictions Invalid

On February 17, 2015, the New York Court of Appeals held that sex offender residency restrictions enacted by local governments were invalid because the state had already created a comprehensive and detailed regulatory scheme.

Michael Diack was convicted of possessing an obscene sexual performance by a child. After his release from prison, he was classified a level one sex offender under the state's Sex Offender Registration Act (SORA). Several years after he was discharged from parole, Diack moved to a new residence within Nassau County, registering his new address as required by the SORA. Upon receiving the information about the new address, the Nassau County Police Department charged Diack with violating Nassau County Local Law 4, codified at Nassau County Administrative Code § 8-130.6, which prohibits any registered  sex offender from residing within 1,000 feet of a school or 500 feet of a park.

Diack moved to dismiss the information on the ground that Local Law 4 was preempted by state law. The trial court granted the motion and the state appealed. The Appellate Term reversed and reinstated the information, holding that it could not find evidence in the state's laws that the Legislature intended to ’’occupy the entire field so as to prohibit the enactment of local laws imposing" residency restrictions on sex offenders. Diack appealed.

The court of appeals noted that the Legislature had "not expressly stated an intent to occupy the sex offender residency restrictions" so it was required to determine whether it had done so by implication. The court reviewed the SORA, Sexual Assault Reform Act of    2000 (SARA), Sex Offender

Management and Treatment Act of 2007, and Chapter 568 of the Laws of 2008 noted especially that the SARA had the practical effect of making it unlawful for certain sex offenders (not including Diack) to reside within 1,000 feet of a school and Chapter 568 directed several state agencies "to promulgate rules and regulations regarding the placement of sex offenders" and address the inability of those agencies "to locate suitable housing for convicted sex offenders." It also noted that the Governor, in approving Chapter 568, criticized "'well-intentioned' local ordinances that imposed 'even more restrictive limitations on registered sex offenders' than the restrictions contained in SARA" and specifically stated that this was "a matter that is properly addressed by the State."

Based on these and other state laws, the court found that the state had established "a detailed and comprehensive regulatory scheme involving the state's ongoing monitoring, management and treatment of registered sex offenders, which includes the housing of registered sex offenders. ... This top-down approach, with the State dictating the relevant factors that local officials are required to consider when placing such offenders in housing, plainly establishes that sex offender registry restrictions are within the exclusive bailiwick of the State and accentuates the State's intent to occupy the field."

Since local residency laws encroach upon the state's occupation of the field and inhibit the operation of the state's general laws, they are invalid. They also cause an uneven distribution of the burden of housing registered sex offenders. Therefore, the Appellate Term's order was reversed and the information dismissed. See: People v. Diack, 24 N.Y.3d 674 (N.Y. 2015).

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Related legal case

People v. Diack