Court of Appeals for New York, Albany (Courtesy photo) Court of Appeals for New York, Albany. (Courtesy photo)

A convicted sex offender’s claim that New York state failed to offer adequate help to find appropriate housing before his release date—a failure that resulted in his extended confinement—was dismissed Tuesday by the New York Court of Appeals.

Chief Judge Janet DiFiore wrote in the court’s opinion that the state Department of Corrections and Community Supervision fulfilled its statutory obligation to help Miguel Gonzalez find a place he could legally reside that complied with his status as a sex offender before his release.

A section of the state’s Correction Law requires the agency to “assist inmates eligible for community supervision and inmates who are on community supervision to secure employment, educational or vocational training, and housing.” DiFiore wrote that the law does not require DOCCS to essentially go out of its way to find housing for an inmate scheduled for release.

“DOCCS has interpreted its obligation under the statute as satisfied when it actively investigates and approves residences that have been identified by inmates and when it provides the inmates with adequate resources to allow them to propose residences for investigation and approval,” DiFiore wrote. “This interpretation is consistent with the plain language of the statute as well as the larger statutory framework.”

The ruling is a modification of the Appellate Division’s decision, which said DOCCS must provide “substantial assistance” in identifying appropriate housing. In other words, the appellate court said the agency must actively seek housing for an inmate that has special residency requirements. DiFiore said in the decision that there is no statutory requirement for DOCCS to offer that kind of help to an inmate.

“There is nothing set forth in the statutory language of Section 201 (5) that imposes a heightened duty upon DOCCS to provide substantial assistance to an inmate seeking housing,” DiFiore wrote.

The lawsuit was brought against DOCCS by Gonzalez, a level one sex offender who pleaded guilty to second-degree rape in 2012. Because the victim was 14 years old, Gonzalez was prohibited under the Sexual Assault Reform Act, or SARA, from living within 1,000 feet of a school or other place where children gather after his release from prison.

He was sentenced to two-and-a-half years in prison at Ulster Correctional Facility, followed by three years of post-release supervision. He was scheduled to be released in May 2014 after earning good time credit of about four months.

Gonzalez had not secured SARA-compliant housing by the time his scheduled release came up, so the state kept him in prison until his maximum release date in September 2014. He was then transferred to the Woodbourne Correctional Facility in Sullivan County, which is considered a medium-security prison and residential treatment facility, or RTF. The state said it was required to keep Gonzalez in a state-approved RTF until he found SARA-compliant housing.

Gonzalez filed the lawsuit against DOCCS in December 2014, asking that he immediately be released from Woodbourne. He was eventually released to a SARA-compliant homeless shelter in Manhattan in February 2015 while his lawsuit against the state was pending.

He alleged that, during his time in custody, DOCCS did little more than check on the compliance and affordability of locations that he suggested. DiFiore said the agency did what was required of it under statute, even if it didn’t immediately work out for Gonzalez.

“Certainly, the record reflects that DOCCS provided more than passive assistance, given that it affirmatively contacted other agencies and providers on petitioner’s behalf because of his financial needs,” DiFiore wrote. “Indeed, petitioner was successfully placed with New York City’s DHS through DOCCS’ efforts, which were adequate to meet its statutory obligation to provide assistance.”

Jill Sanders, an associate with Pappalardo & Pappalardo in Westchester County, was counsel to Gonzalez before the high court. Sanders said she was disappointed in the court’s decision, which she said could have helped others like her client if the outcome was different.

“Obviously we’re disappointed with the result,” Sanders said. “There’s hundreds of people who are sitting in prison right now that we were hopeful this decision would have helped in terms of them being able to come home to their families and their communities.”

Sanders said she disagreed with the majority’s interpretation of the statute, which she argued the state violated when it did not offer Gonzalez additional help to find housing. She had sided with the Appellate Division, which noted that Gonzalez had limited access to the internet or a telephone to help locate housing on his own. Instead, Gonzalez had to repeatedly suggest possible locations to a parole officer, who checked whether or not he was legally able to live there.

Associate Judge Rowan Wilson, in a dissenting opinion, likened that experience to “a game of real-estate Battleship.”

“As the record in this case vividly demonstrates, the principal assistance DOCCS provided to Mr. Gonzales was allowing him periodically to submit a list of guesses to a parole officer whose function was to enter those guesses into a computer and report back that Mr. Gonzalez had failed yet again,” Wilson said. “DOCCS did not give him access to its system to allow him to search for himself; it did not provide him a map, a list of potential neighborhoods, or even a hint as to how to look for available compliant housing.”

“What DOCCS has done to Mr. Gonzalez is neither statutorily authorized nor penologically justified. It should not stand,” Wilson said later in his decision.

Assistant Solicitor General Ester Murdukhayeva argued on behalf of DOCCS before the Court of Appeals last month. A spokesman for the agency declined to comment on the decision.

Associate Judges Leslie Stein, Eugene Fahey, Michael Garcia and Paul Feinman concurred with DiFiore’s opinion. Associate Judge Jenny Rivera concurred in part and dissented in part, agreeing with parts of Wilson’s dissenting opinion.


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