Sex Offender Issues by Terence Corcoran - September 1, 2010
CARMEL, NY — A Putnam County law banning the most serious sex offenders from living near places that children frequent is unconstitutional, a state Supreme Court justice has ruled. The Aug. 26 decision by Justice Francis A. Nicolai means the county can no longer order Level 2 and 3 sex offenders — considered the most likely to reoffend — to move. It also means that [name withheld], a former Virginia schoolteacher who spent nine years in federal prison on child pornography charges, can continue living in his parents' Southeast home. [name withheld] had challenged the law, amended in 2009 by the Putnam County Legislature, that created child-safety zones within 1,000 feet of schools, child-care facilities, municipal recreation facilities and open-space areas. Three sex offenders were ordered to move as a result. One was arrested and served a brief stint in the county jail before relocating, while a second also moved, although authorities later determined that he was only Level 1. The third was [name withheld], 40, who had moved into his parents' Cobb Road home in 2006. He was no longer on parole or probation and had a job, according to court papers. He received a letter in 2009 from the Sheriff's Department telling him to relocate because the house was close to an open-space area. [name withheld]'s Mahopac attorney, Francis J. O'Reilly, praised the decision Tuesday. "The Putnam County sex- offender residency law was an ill-conceived reaction by the Putnam County Legislature to the revelation that persons convicted of sex crimes live among us," O'Reilly said in an e-mailed statement. "The attempt to regulate the residence of sex offenders beyond what is already provided in state law, which already provides a comprehensive plan for the management of sex offenders, was clearly an unconstitutional attempt to infringe on the rights afforded citizens under the Constitution by restricting where they can live." Nicolai found that the law imposed after-the-fact punishments that violated the state and federal constitutions and that it couldn't be enforced retroactively on sex offenders who had a legal residence before the 2009 amendment. County Attorney Jennifer S. Bumgarner called the ruling "unfortunate but not wholly unexpected." "The Legislature knew what it was up against when it adopted the law, but felt that its passage was, nonetheless, in the best interests of the County's residents," she wrote in an e-mail Tuesday. Bumgarner said she would not recommend an appeal but would do what legislators ask. Legislator Tony Hay, R-Southeast, called the ruling a "devastating defeat for the people of Putnam County." "My terrible disappointment is that the entire law has been deemed unconstitutional," Hay said. "I hope that any judge who renders decisions like this experiences the fear the people on Cobb Road felt and, in time, realizes why we proposed the law."