A paroled sex offender required to remain in New York City but struggling to find a place to live because he cannot reside within 1,000 feet of a school or other places where children congregate has failed to convince a Manhattan judge that the restrictions are unconstitutional.
Supreme Court Justice Michael Stallman (See Profile) said that while it may not be easy for a sex offender to find an affordable place to live in New York City that doesn’t violate the 1,000-foot rule, it is not impossible.
Stallman said that although most of Manhattan, where parolee Foster Williams lived for 20 years prior to his conviction, and much of the Bronx, is off limits, large portions of Queens and Brooklyn are legally hospitable to sex offenders. He rejected Williams’ claim that he was illegally exiled and that the imposition of the residency restriction violates the ex post facto clause of the U.S. Constitution, which bars states from increasing punishment after a crime has been committed.
Williams was convicted in 1996 of multiple felonies, including first-degree rape, in connection with the forcible rape and sodomy of a nine-year-old girl. He was sentenced to a 7-to-21-year state prison term and paroled in late 2012.
While under parole supervision, which could last until November 2016, Williams is subject to the provisions of the Sexual Assault Reform Act (SARA), which bars him from school grounds. He is also subject to a special parole condition that says he cannot go within 1,000 feet of “places where children congregate,” including schools, parks, day care centers and playgrounds.
Williams is living in a shelter on East 30th Street but is seeking permanent housing in Manhattan that meets his financial and physical restrictions as well as SARA and the conditions of his release. Records show he is 64 years old, has health issues that make it difficult for him to climb stairs and can afford to pay about $600 a month in rent.
Stallman’s decision stems from an Article 78 initiated on Williams’ behalf by the Office of the Appellate Defender. The suit, Williams v. Department of Corrections and Community Supervision, 400638, alleges that the residency and travel restrictions violate the ex post facto provision and the petitioner’s due process rights.
The court said the limits do not implicate Williams’ ex post facto rights because they are not punitive in nature.
“The Legislature sought to protect children from harm and not to increase punishment against sex offenders,” Stallman wrote. “Although the Legislature uses the language of prohibiting sex offenders from entering school grounds, the underlying intention is to protect the health and safety of children.”
Stallman’s conclusion is at odds with a decision his colleague, Manhattan Supreme Court Justice Anil Singh (See Profile), issued in 2011. In Matter of Berlin v. Evans, 31 Misc 3d 919 (2011) Singh found SARA punitive as applied to the petitioner in that case—a 77-year-old, low risk, first time offender—and therefore violative of the ex post facto clauses.
Additionally, Stallman rejected Williams’ argument that the 1,000-foot restriction essentially banishes him from Manhattan and most of New York City. Stallman said the very map Williams submitted purporting to show that major portions of the city are off limits to sex offenders actually reveals many areas where offenders could live without coming within the 1,000-foot radius.
The judge acknowledged that except for Roosevelt Island, Chelsea, Stuyvesant Town and the Financial District, Manhattan is generally closed to sex offenders. Additionally, he said it appears most of the Bronx, with the exception of the Hunts Point, Port Morris, Melrose, Pelham Parkway and Williamsbridge neighborhoods, are off-limits.
But Stallman said there are “vast areas of Queens,” including Long Island City, Hunters Point, Sunnyside, Maspeth, Middle Village, Elmhurst and Corona that are not within the 1,000 foot radius. Additionally, he said it appears the entire Greenpoint neighborhood of Brooklyn is open.
Stallman said that while Williams may prefer to live in Manhattan, he has “no particular property interest” that he would have to abandon in complying with his parole conditions. He also said that parolees “enjoy only conditional liberty” and found no violation of Williams’ substantive due process rights.
“Given the nature of petitioner’s crime and his status as a parolee, the temporary restriction against entering within 1,000 feet of a school is rationally and reasonably related to the permissible and legitimate state objective of protecting children,” Stallman wrote.
Molly Booth and Lauren Stephens-Davidowitz of the Office of the Appellate Defender represented Williams. Booth said she was “very disappointed” in the decision and intends to appeal. In addition to infringing on her client’s rights, she said, the restriction is poor public policy.
“In order for people to properly integrate into society, they need to have a stable situation,” she said. “I think the SARA restriction makes it that much more difficult.”
The Attorney General’s office declined comment. Assistant Attorney General Inna Ringh defended the state.
@ |John Caher can be contacted at email@example.com. Twitter: @JohnCaher