The state Court of Appeals has agreed to decide if local governments can restrict where sex offenders can live, a question that has arisen countless times around the state. At issue is whether the state, by enacting legislation controlling where some sex offenders may reside, has preempted local authority.

People v. Diack arose from Nassau County and a decision last fall by the Appellate Term, Second Department. The court reversed Nassau County District Court Judge Valerie Alexander (See Profile) and upheld a Nassau County ordinance that bars sex offenders from living within 1,000 feet of a school.

Under state law, some sex offenders are barred, as a condition of their release, from living within 1,000 feet of schools and other child care facilities.

But the Appellate Term noted that the state law did not present a “comprehensive legislative scheme” for offenders who are not under parole or probation supervision, or seeking public assistance. It said Nassau County has a right to control where Michael Diack and other sex offenders can live (NYLJ, Sept. 10, 2013).

Diack was convicted in 2001 of possessing an obscene sexual performance and, after serving a two-year sentence, was designated a Level 1, or low risk, offender. When Diack moved to a residence about 500 feet from a school, he was charged with violating the local ordinance.

Leave was granted by Judge Susan Phillips Read (See Profile). Kathy Manley of Kindlon Shanks & Associates in Albany represents Diack. Assistant Nassau County Attorney Robert Van der Waag represents the county.