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People v. Blair

February 18, 2009


The opinion of the court was delivered by: Thomas K. Keefe, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The defendant, James Blair, was charged on May 6, 2008 with one count of residing within 1000 feet of real property, in violation of Albany County Law No. 8 for 2006, a misdemeanor. By notice of motion filed on August 29, 2008, the defendant through his attorney, Julianne Girard, Esq., moves for omnibus relief. The People have responded through the affirmation in opposition of George P. Ferro, Esq., filed on September 26, 2008. The matter now comes before the Court for a decision.

Motion to Dismiss the Accusatory Instrument Preemption

The defendant seeks an order dismissing the accusatory instrument on the ground that Albany County Local Law No. 8 for 2006 is preempted by New York State Law. Before reaching the merits of the above argument, the Court addresses the People's sole response to the instant motion that "this Court has previously ruled on the constitutionality of this statute" in People v Ethan Wray (Alb. City Ct, July 4, 2008, Kretser, J.). While, certainly, the above decision, among others, is entitled to respectful consideration, it is nonetheless well-settled that a decision of a judge of coordinate jurisdiction is not binding precedent (see People v. Hill, 16 Misc 3d 176, 182 [NY City Crim Ct 2007]; People v. Shieh, 174 Misc 2d 971, 972 [NY City Crim.Ct.,1997]; In re Cruikshank's Estate, 169 Misc 514, 515 [NY Sur 1938]; In re Herle's Estate, 165 Misc 46, 49 -50 [NY Sur 1937]; In re Kathan's Will, 141 N.Y.S. 705, 712 [NY Sur 1913]).

Local Law No. 8, which became effective on September 1, 2006, is entitled "A Local law of the County of Albany, New York Establishing Residency Restrictions in the County of Albany For Sex Offenders Who Have Committed Criminal Offenses Against Minors" and provides the following at Section 3: "A sex offender as herein defined shall not reside within one thousand feet of the real property compromising a public or nonpublic elementary school or secondary school or a child care facility." Local Law No. 8 defines "sex offender" at Section 2 (a) as: "a person who has been convicted of a sexual offense against a minor and has received a level two or three designation as defined in Article 6-C of the New York State Corrections Law." Section 2 (b), in turn, defines a "child care facility" as: "licensed and/or registered child day care centers, group family day care homes and family day care homes as defined by the New York State Social Services [L]aw". Lastly, Section2(c)defines the term "residence" as: "the place where a person sleeps, which may include more than one location, and may be mobile or transitory."

Albany County is not unique among localities in enacting residency restrictions for sex offenders. The rise of such local laws throughout New York State was recently noted by Supreme Court:

" sex offender residency restrictions are multiplying throughout New York State, as local legislatures scramble to outmaneuver each other with highly restrictive ordinances designed to banish registered offenders from their communities. Not in my backyard' residency restrictions are spreading unchecked through county town and village ordinance books from Suffolk County to Niagra Falls. More than 80 such laws have recently been enacted in New York'"

(People v Oberlander, Sup Ct, Rockland County, Jan. 22, 2009, Kelly J., indictment No. 02-354, at 2; quoting O'Connor, State Preemption of Local Sex-Offender Residency Laws NYLJ, Nov. 24, 2008; see Hutchins, Colonie May Restrict Where Some Sex Offenders Can Stay, Albany Times Union, Feb. 11, 2009). In fact, enactment of sex offender residency restrictions and challenges to such laws are occurring nationwide (see G.H. v Township of Galloway, 401 N.J. Super. 392 [App. Div. 2008]; Levenson & Hern, Sex Offender Residency Restrictions; Unintended Consequences and Community Re-entry, 9 Justice Res and Pol 59 [2007], available at$FILE/Lev_H ern.pdf [accessed Feb. 12, 2008]).

While the defendant raises multiple constitutional challenges to Local Law No. 8, the Court initially addresses whether this law is preempted by New York State Law. The New York Constitution empowers municipalities to make local laws "not inconsistent with the provisions of this constitution or any general law" (NY Const. Art. 9, § 2 [c] [Home Rule Clause]; see Municipal Home Rule Law § 10; Jancyn Mfg. Corp. v. Suffolk County, 71 NY2d 91, 96 [1987]). However, "[t]he preemption doctrine represents a fundamental limitation on home rule powers" (Albany Area Bldrs. Assn v. Town of Guilderland. 74 NY2d 372, 377 [1989]) and "local police power may not be exercised in an area in which it is preempted by State law" (People v Oberlander, supra at 2; see Jancyn Mfg. Corp. v. Suffolk County, 71 NY2d at 96). "Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, local law regulating the same subject matter is considered inconsistent and will not be given effect" (Village of Nyack v. Daytop Vil.,Inc., 78 NY2d 500, 505 [1991]). It is well settled that "[p]reemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field" (Albany Area Bldrs. Assn v. Town of Guilderland., supra at 377; see Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99 [1983]). Indeed, "[i]t is enough that the Legislature has impliedly evinced its desire to [occupy an entire field] and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area" (New York State Club Assn, Inc. v. City of New York, 69 NY2d 211, 217 [1987]). The State's intent to occupy an entire field may additionally be implied "from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area" (Albany Area Bldrs. Assn v. Town of Guilderland, supra at 377). Applying these principles to the case at hand, this Court agrees with the recent decision issued by the Supreme Court (see People v Oberlander, supra) that the New York State Legislature has enacted a comprehensive and detailed regulatory scheme regarding the registration and regulation of sex offenders, preempting local legislation on this subject.*fn1

The Sex Offender Registration Act, as well as other State laws, demonstrate the Legislature's intent to provide a comprehensive and evolving regulation over the lives of convicted sex offenders. The Legislature set forth its intent in the preamble to SORA:

"The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.

The system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.

Persons found to have committed a sex offense have a reduced expectation of privacy because of the public's interest in safety and in the effective operation of government. In balancing offenders due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex offenders to the general public, will ...

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