Andrew Keshner, Judge Finds State Limits on Sex Offender Moves Illegal, New York Law Journal

A judge has found the state’s 2005 restrictions on sex offender movement violate constitutional bans on retroactive punishment when applied to a man convicted of sexual abuse in 2002 and effectively banished him from many parts of Brooklyn as a result.

Brooklyn Supreme Court Justice Yvonne Lewis determined that Executive Law §259-c(14)—which forbids sentenced offenders from “knowingly entering into” publicly accessible areas within 1,000 feet of school grounds and other institutions where minors are present—violated the Ex Post Facto Clause of the Constitution in the case of Michael Devine, convicted of first-degree sexual abuse of a 17-year-old girl in 2000, when he was 20.

As a result, the judge granted Devine’s Article 78 petition and permitted him to live in Brooklyn with his fiancée and her three children from a previous relationship.

In Devine v. Annucci, 5406/12, Lewis concluded the statute, in this particular case, was retroactively punitive.

“The extent to which Executive Law §259-c(14) prohibits the petitioner from knowingly entering a very substantial portion of Brooklyn puts its limitations on a par with banishment in the eyes of this court,” she said.

The state argued restraints on Devine were “minimal,” noting there were other places outside Brooklyn were he could live.

But the state argument seemed to “reflect perfectly the precise definition of banishment,” Lewis said. “Requiring a person not only to quit his place of residence but also to move out and stay out of an entire borough, is far from minimal.”

Devine, a pseudonym, was sentenced in 2002 to a seven-year term. He was conditionally released in 2008 and deemed a Level I offender, considered to be the lowest risk of re-offense.

In February 2014, the Department of Corrections and Community Supervision, one of the respondents in the petition, told Devine the residence he shared with his fiancée and her children was not compliant with Executive Law §259-c(14).

As he searched for a new residence, a monitoring bracelet was placed on his ankle. He ended up living with his mother in Brooklyn.

In Devine’s petition, he said Executive Law §259-c(14) amounted to ex post facto punishment because the amendment was enacted after his conviction and increased penalties because it pushed Devine out of his home and community and held out possibility of incarceration for non-compliance.

The Constitution’s Ex Post Facto clause prohibits an increase in punishment for a crime after it was committed. In this case, prior to the 2005 amendment, the statute, known as the Sexual Assault Reform Act, had a more narrow definition of school grounds and therefore fewer restrictions on movement.

Devine submitted a map showing that he was prohibited from entering—and consequently living in—all but small pockets in the outer edges of the borough.

Despite uncertainty about legislative intent surrounding the amendment, Devine said the statute was so punitive, it vitiated any benign intent from lawmakers. Moreover, he said, the lack of individual assessment made the statute punitive in effect.

Lewis noted the state rejected the map but did not offer its own map in refutation.

The state said the restrictions did not ban Devine from all parts of the city and therefore were not significantly punitive to be seen as an unconstitutional ex post facto law.

In her decision, Lewis said, assuming for argument’s sake that the map was accurate and Devine strictly followed the law, he was “in effect trapped or locked in once he enters a compliant area, to say nothing of the fact that he will have had be non-compliant to reach the place of compliance.”

She noted case law backed her view that in light of the “substantial restrictions,” an absence of individualized assessment made the statute punitive in effect.

The state urged Lewis to follow Matter of Williams v. Dept. of Corr. and Community Supervision, 43 Misc.3d 356. The 2014 Manhattan Supreme Court decision also weighed the ex post facto clause but said Executive Law §259-c(14) was constitutional.

Lewis distinguished Williams from the case before her, saying it further emphasized the need for individualized assessments. There the victim was a 9-year-old girl and the offender had no particular ties to Manhattan.

Here, Devine had established ties to Brooklyn and the victim was 17 years old—arguably not a child, the judge said.

Devine was designated a low risk offender but “categorically grouped with all other sex offenders whose victims were under the age of 18 at the time of the crime. Therefore, the petitioner is viewed and treated in the same light as sex offenders who have been deemed to present a high risk of danger to children. Such an outcome renders the statute punitive when considering the instant circumstances.”

Other courts have considered the application of the ex post facto clause to state and local sex offender rules. For example, Eastern District Judge Pamela Chen recently ruled that the legislative intent behind current state offender registration requirements were not punitive, but meant to protect the public (NYLJ, Sept. 26).

Devine was represented by Susannah Karlsson, special litigation counsel at Brooklyn Defender Services. He was also represented by Lisa Napoli, a supervising attorney at Appellate Advocates.

Assistant Attorney General Inna Ringh appeared for the state defendants.
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