New York’s Highest Court Strikes Down Local Sex Offender Residency Laws

On February 17, 2015, the NY State Court of Appeals in the matter of the People v. Diack, unanimously invalidated Nassau County’s sex offender residency rules which prohibit known sex offenders from residing within 1,000 feet from a school. The court stated that other municipalities in New York have adopted similar laws prohibiting registered sex offenders from living within a certain distance of schools, daycare centers, parks, youth centers, and other areas where children are likely to congregate. On October 23, 2007, the Town of Southampton adopted Chapter 215, which delineates known sex offender residency restrictions. In an article I wrote in 2013, “Where Can a Sex Offender Live?” I stated that as a result of “Moore v. County of Suffolk,’ both the County and Southampton Laws may not be enforceable. The Court of Appeals decision applies State-wide.

In a telephone conversation with Southampton Town Attorney, Tiffany S. Scarlato, Ms. Scarlato stated, as a result of the Court’s decision, she instructed local law enforcement authorities to cease enforcing the Town’s Residency Law. The Court stated the following regarding local sex offender residency laws: “That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely the protection of children from sex offenders. Local governments have, understandably, relied on their local police power in furthering that interest.” It went on to say, “But a local government’s police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local government attempts to regulate, the local interest must yield to that of the State in regulating that field.” It further stated: “Beginning with enactment of the ‘Sex Offender Registration Act [1996] the Legislature has passed and the Governor has signed a series of laws regulating registered sex offenders.”

The Court also observed: “The regulations [promulgated by the State] also acknowledge that the maintenance and location of acceptable housing for sex offenders constitutes ‘an enormous challenge that impacts all areas of the State’ because sex offenders, upon release from prison, typically return to the communities where they previously resided and the proliferation of well-intentioned local ordinances imposing residency restriction has hampered the ability of the State and local authorities to address the difficulty in finding appropriate housing for sex offenders.” It went on to say, “As the State has acknowledged, communities in recent years have taken to shifting the burden of sex offender housing to neighboring communities, thereby frustrating the State’s policy that each community bear the burden.”

I stated in my previous article that, according to the Division of Criminal Justice Services, there are approximately 1,000 sex offenders living in Suffolk County, more than twice as many as living in Nassau County.

The Civil Liberties Union filed a brief in support of the defendant, Diack, in the Court of Appeals case and contended that there were at least 130 similar local provisions to those in Nassau County throughout the state.

As I stated in a previous article posted in January 5, 2012, “Megan’s Law and Real Este Sales” a New York Court ruled that it is not the responsibility of the property owner or the property owner’s real estate agent to disclose that a known sex offender is living in the area. It is the obligation of the prospective buyer or tenant to find out by consulting the public record.