For petitioner: Office of the Appellate Defender Richard M. Greenberg, Esq., Molly Booth, Esq. And Lauren Stephens-Davidowitz, Esq.
For respondents: Eric T. Schneiderman, Esq., Attorney General of the State of New York Of Counsel: Inna Ringh, Esq., Assistant Attorney General.
Michael D. Stallman, J.
In this CPLR Article 78 proceeding, petitioner Foster Williams seeks a judgment prohibiting respondent New York State Department of Corrections and Community Supervision, sued here as Department of Corrections and Community Supervision, from enforcing Executive Law § 259-c (14), which was enacted pursuant to the Sexual Assault Reform Act (SARA) and subsequently amended by Laws of 2005, chapter 544, against petitioner, and declaring that the law is unconstitutional, insofar as the law prevents him from traveling or living within 1, 000 feet of a school. 
On January 12, 1996, after a jury trial, petitioner was convicted of one count of Rape in the First Degree (Penal Law § 130-35 ), three counts of Sodomy in the First Degree (Penal Law § 130-50 ), and one count of Endangering the Welfare of a Child (Penal Law § 260.10 (1) (see People v Williams, 257 A.D.2d 425, 425 [1st Dept 1999]; see also verified petition, exhibit A, Sentence & Order of Commitment), on the finding that petitioner forcibly raped and sodomized a nine-year-old girl. Petitioner was sentenced to an indeterminate term of imprisonment of 7 to 21 years. The maximum expiration date of petitioner's sentence is November 18, 2016.
Penal Law § 220.00 (14) and SARA
Penal Law § 220.00 (14) defines "school grounds" as follows:
" School grounds' means (a) in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or (b) any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school or any parked automobile or other parked vehicle located within one thousand feet of the real property boundary line comprising any such school. For the purposes of this section an area accessible to the public' shall mean sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants"
(Penal Law § 220.00  [emphasis added]).
In 2000, the New York Legislature enacted the Sexual Assault Reform Act (SARA), which took effect on February 1, 2001 (L 2000, ch 1 [SARA]). As part of SARA, a new subdivision 14 was added to section 259-c of the Executive Law  (see L 2000, ch 1, § 8). As enacted, subdivision 14, in relevant part, provided:
"where a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25 of the penal law and the victim of such offense was under the age of eighteen at the time of such offense, is released on parole..., the board [of parole] shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in paragraph (a) of subdivision fourteen of section 220.00 of the penal law, or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present"
(id. [emphasis added]). 
In 2005, the Legislature amended SARA by passing an act, entitled "Sex Offenses - School Buildings and Grounds - Conditional Release" (the 2005 Act) (see 2005 McKinney's Session Laws of NY, v 1, ch 544). As part of the 2005 Act, the Executive Law § 259-c (14) was amended to read:
"where a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25 of the penal law and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender pursuant to subdivision six of section 168-1 of the correction law, is released on parole or conditionally released..., the board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in subdivision fourteen of section 220.00 of the penal law,  or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present"
(L 2005, ch 544, § 2; 2005 McKinney's Session Laws of NY, v 1, ch 544 at 1466 [emphasis added]). The 2005 Act went into effect on September 1, 2006.
Petitioner's Release to Parole
On November 12, 2012, respondent's State Board of Parole (Board of Parole) issued a decision releasing petitioner to parole supervision (verified answer, exhibit A). On December 19, 2012, petitioner was adjudicated a level two sex offender by the Supreme Court, New York County (verified petition, ¶ 4; exhibit B). It is undisputed that, on December 20, 2012, petitioner was released to parole supervision, and is scheduled to remain on parole supervision until November 18, 2016 (id., ¶ 5; exhibit C; verified answer, ¶ 4).
Prior to his release, petitioner agreed to a number of conditions imposed by the Board of Parole (verified answer, exhibit B). Petitioner signed a form which, in relevant part, provided, "I understand that I will be in the legal custody of the Division of Parole until the 18th day of November, 2016, and agree to abide by the conditions of my release with the full knowledge that failure to do so may result in my reimprisonment by order of the Board of Parole pursuant to law" (verified answer, exhibit B, Application for Conditional Release to Parole Supervision).
As a mandatory condition of release to parole supervision, petitioner agreed to "not knowingly enter into or upon any school grounds as that term is defined in Penal Law § 220 (14)" (verified petition, exhibit A).
As part of special conditions of release to parole supervision, petitioner agreed that, until November 18, 2016, he "will not enter, remain, or be with[in] 1, 000 feet of places where children congregate, such as... parks, schools, day care, playgrounds... without the prior knowledge and permission of my Parole Officer" (the Condition) (verified answer, exhibit C, Special Conditions of Release to Parole Supervision, ¶ 13; see also verified petition, exhibits D, E).
Prior to his incarceration, petitioner allegedly lived in New York City for over 25 years, and in Manhattan for over 20 years. Upon his release, petitioner was directed to move to the Bellevue Men's Shelter at 400 East 30th Street, New York, New York (the shelter), and he currently resides there.
On November 16, 2012, petitioner's attorneys wrote to the Board of Parole, requesting that the 1, 000-foot "residency restriction" be removed from petitioner's parole conditions, on the ground that, among other things, the imposition of this restriction violates the Ex Post FactoClause of the United States Constitution (article I, § 10) (id., exhibit F).
In a letter dated December 12, 2012, respondent wrote back to petitioner's attorneys stating that, pursuant to the Executive Law § 259-c (14), "the SARA condition" applies to petitioner because he was "an offender who [was] serving a sex offense... and whose victim [was] under the age of 18" (id., exhibit G).
Petitioner states that: (1) he is now 64 years old (verified petition, ¶ 2); (2) since January 2013, he has been looking for an apartment that would comply with the Condition (id. ¶ 23); (3) based on his savings and the anticipated public assistance, he is "willing to spend about $600 per month on rent" (id.); (4) because of his age and medical conditions,  he is "unable to climb many stairs or walk very far, " and his "housing search is limited to apartments without many stairs and that are [close] to a subway station" (id., ¶¶ 20-21, 24); (5) it is important for him "to find housing that [would] allow [him] to easily get to [his] doctor's office, to [his] sex offender and drug addiction treatment programs, and to [his] appointments with [his] parole officer" at the Division of Parole (the last two places are located in Manhattan) (id., ¶¶ 17, 18, 21, 22, 24); (6) in his housing search, he received help from his friends and Morgan Buras, a social work intern at the Office of the Appellate Defender's Social Work/Re-Entry Program, and has used the services of two room rental agencies (id., ¶¶ 25-27); (7) the rooms that the rental agencies have found and the six available apartments that he visited in the Bronx and Manhattan were all allegedly too close to schools (id., ¶¶ 26, 28); (8) because it is painful for him to walk, it has been difficult for him to visit different apartments in order to determine their proximity to a school or day care (id., ¶ 29); and (9) he has "been informed that nearly all residential addresses in New York County are within 1, 000 feet of a school, " and that the situation is not better in other boroughs (id., ¶ 30).
Petitioner provides an affidavit of Buras, who states that: (1) she has worked with petitioner to help him secure housing; (2) "[i]t is very difficult to find housing that complies with [petitioner's] residency restriction;" "it seems that almost all of the housing that is available is within 1, 000 feet of a school or day care" (id., exhibit H, 04/11/13 Buras aff, ¶ 6); (3) if not for the residency restriction, petitioner "would be able to find an apartment within his financial means" (id., ¶ 7); (4) petitioner "is very responsible" and "is doing everything he can to find permanent housing" (id., ¶ 9); and (5) it is important that petitioner finds a stable living situation; "[t]he homeless shelter system is not a long-term solution;" and "the conditions in the Bellevue Men's Shelter are not conducive to [petitioner's] reintegration into society, particularly given his age and health" (id., ¶ 8).
Petitioner challenges the Executive Law § 259-c (14), as amended by the 2005 Act, to the extent that it prohibits him from living or traveling within 1, 000 feet of a school, on the grounds that it violates: (1) the United States Constitution's ban on ex post facto lawmaking (US Const, article I, § 10), as applied to him; (2) his federal and state constitutional rights to substantive due process (US Const, 14th Amend, § 1; NY Const, art I, § 6); and (3) his constitutional right to travel.
Form of Action
The first issue is whether this proceeding may be brought as CPLR article 78 proceeding.
"[A]n article 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or regulation has been applied in an unconstitutional manner" (Matter of Kovarsky v Housing & Dev. Admin. of City of NY, 31 N.Y.2d 184, 191 ; see also DiMiero v Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 A.D.2d 875, 877 [3d Dept 1993]). However, "an article 78 proceeding may not be used to test the constitutionality of a legislative enactment, as distinct from the constitutionality of its application" (Board of Educ. of Belmont Cent. School Dist. v Gootnick, 49 N.Y.2d 683, 687 ). An action that challenges the constitutionality of a legislative act should be converted to a declaratory judgment action (see id.).
Given that petitioner here challenges both the constitutionality of a legislative act and its allegedly unconstitutional application, this proceeding, pursuant to CPLR 103 (c), is converted to a combined declaratory judgment action and CPLR article 78 proceeding (see e.g. Press v County of Monroe, 50 N.Y.2d 695, 702 ; see also Matter of Capital Fin. Corp. v Commissioner of Taxation & Fin., 218 A.D.2d 230, 232 [3d Dept 1996]).
Presumption of Constitutionality
"Legislative enactments enjoy a strong presumption of constitutionality. While the presumption is not irrefutable, parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt. Moreover, courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional" (LaValle v Hayden, 98 N.Y.2d 155, 161  [internal quotation marks and citations omitted]; see also People v Foley, 94 N.Y.2d 668, 677 , cert denied531 U.S. 875  ["an enactment of the Legislature... is presumed to be valid"]; People v Davis, 43 N.Y.2d 17, 30 , cert denied438 U.S. 914  ["[s]tate statutes under scrutiny... will be stricken as unconstitutional only as a last resort and... courts may not substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation"]; Courtesy Sandwich ...