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January 23, 2009

preemption sinks Rockland County sex offender residency law

Filed under: lawyer news or ethics — David Giacalone @ 11:59 pm

update (Jan. 26, 2009): Click for the decision in Peo. v. Oberlander. (via Kathy Manley)

afterwords (Feb. 20, 2009) See our post on Peo. v. James Blair, in which an Albany City Court judge follows the Oberlander precedent.  follow-up (March 27, 2010): The Schenectady County sex offender residency law was voided yesterday by State Supreme Court Justice Barry Kramer, who held that the law was pre-empted by New York State laws covering restrictions on where sex offenders may live. See “Sex offender law tossed out” (Albany Times Union, March 27, 2010).  The case was brought pro bono by the Albany law firm of [Terence] Kindlon Shanks & Associates, which has successfully challenged similar laws in Albany, Resselaer and Washington Counties.  Attorney Kathy Manley handled the Schenectady County case for the Kindlon law firm.

We’ve been lax covering sex offender residency news since our marathon posting in 2007.  I’m pleased to report tonight, however, that Supreme Court Justice William Kelly struck down the Rockland County sex offender residency law, in a decision released today. Peo. v. Oberlander (Jan. 22, 2009) It is the first case in New York decided on the basis that the State has pre-empted the field, leaving no room for a county or other government unit to impose further restrictions.  See “State judge throws out Rockland’s housing law for sex offenders” (The Journal News, Jan. 23, 2009; via David Hess, TheParson.net).

According to The Journal News

“Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.

“Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.”

Attorney David Goldstein represented the defendant in the case of People v. Yoel Oblerlander, which charged a Violation of Probation based on the defendant’s having  “moved to a residence within 1,000 feet of a ‘Rockland County pedophile-free child safety zone’ in violation of Local Law No. 1 of 2007.”     Under the Rockland County law, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities. Goldstein told the Journal News that Rockland’s 1,000 feet restriction, or any boundary, is arbitrary and meaningless as far as protecting the public.

“The state law of letting probation officers use their discretion is more effective,” Goldstein said. “The county law was an over-reaction with a nebulous 1,000-foot magical line.”

There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine).

Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own sex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009).  Ulster County Legislator Glenn Noonan told the The Daily Freeman that:

“I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.”

More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)

update (Jan. 28, 2009):  At his Sex Crimes weblog, Prof. Corey Rayburn Yung points out that “As was the case in New Jersey [G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008)], the state could cure the conflict by either expressly allowing localties to implement residency restrictions or by adopting a statewide residency restriction law.”

update (Feb. 2, 2009): State Senate Majority Leader Malcolm A. Smith has already proposed a bill — S.1300 — that would impose 1000-foot no-residence “safety zones” around schools, parks, day care centers.  See our post “don’t let a bad idea go statewide” (Feb. 2, 2009).

1 Comment

  1. The Star-Ledger in NJ, listed the following articles. I’ve listed the briefs, the complete articles must be purchased from the archives.
    Can someone/ anyone tell me what the law is, now? Can a sex offender, (PREDATOR) sit on the bench or not? What happens if someone is caught breaking one of these laws? I’m confused!

    2006/10/13 Fri Pg 029, 756 words A new try to keep predators from kids — Union County law prohibits loitering . . .

    [Editor's Note: I've deleted the many excerpts from the Star-Ledger that you put in this comment. They were repetitious, had no links to the full articles, and were not very helpful in answering your questions. I do not know the status of sex offender restrictions in the 100+ New Jersey municipalities with such laws, since the G.H. v. Township of Galloway decision, which voided the local law as pre-empted by State law, and was upheld by the NJ Appellate Division. I suggest that you ask the relevant County or Town Attorney or the Office of your State Attorney General for their position and to learn whether the laws are being enforced.

    The New Jersey Supreme Court will be reviewing the decision this year in G. H. v. Galloway. Until it rules, the status of current laws restricting the presence of sex offenders in New Jersey will be murky. You may want to contact the American Center for Law and Justice, in Washington, D.C., which represents the Township of Galloway in this case; or contact the ACLU of NJ, which represents G.H.]

    Comment by Question? — January 30, 2009 @ 8:08 am

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