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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 1 

The People &c.,

 Respondent,

 v.

Michael Diack, 

 Appellant.

Kathy Manley, for appellant.

Kenneth L. Gartner, for respondent.

New York Civil Liberties Union, amicus curiae.

PIGOTT, J.:

In 2006, Nassau County enacted Local Law No. 4-2006

(Local Law 4), which, as relevant here, prohibits registered sex

offenders from residing within 1,000 feet of a school. In recent

years, dozens of municipalities in this State have enacted

similar laws that prohibit registered sex offenders from living

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within a certain distance of schools, daycare centers, parks,

youth centers and other areas where children are likely to

congregate.1 That such laws are proliferating at an accelerated

rate is hardly surprising, given the significant interest

involved, namely, the protection of children from sex offenders. 

Local governments have, understandably, relied on their police

power in furthering that interest. 

But a local government's police power is not absolute. 

1 Sex offender residency laws have generated significant

litigation in this State's local and federal courts, with almost

all of the challenges to their validity involving the issue of

preemption (see People v Kramer, 45 Misc 3d 458 [Village of

Massapequa Park Just Ct, 2014] [village law prohibiting a

registered sex offender from residing within a one-mile radius of

any school or park]; Budesheim v Southampton Town Police Dept.,

2014 NY Slip Op 32278[U] [Sup Ct, Suffolk County 2014] [county

local law prohibiting registered sex offenders from residing

within a quarter mile of the property of any school, daycare

center, playground or amusement park]; Doe v County of

Rensselaer, 24 Misc 3d 1215[A] [Sup Ct, Rensselaer County 2009]

[county local law prohibiting level two and level three sex

offenders from residing within 2,000 feet of a school or

childcare facility]; People v Blair, 23 Misc 3d 902 [Albany City

Ct, 2009] [county local law prohibiting level two and level three

sex offenders from residing within 1,000 feet of a school or

childcare facility]; People v Oberlander, 22 Misc 3d 1124[A] [Sup

Ct, Rockland County 2009] [county law prohibiting sex offenders

from residing, working or loitering within 1,000 feet of a

school, childcare facility, playground, youth center or public

swimming pool]; see also Moore v County of Suffolk, 2013 WL

4432351 [ED NY 2013] [county local law prohibiting registered sex

offenders from living within a quarter of a mile of the property

line of any school, licenced daycare center or playground];

Terrance v City of Geneva, 799 F Supp 2d 250 [WD NY 2011] [city

law prohibiting level two and level three sex offenders from

residing within 1,000 feet of a school and 500 feet of a park,

playground or daycare center]). 

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When the State has created a comprehensive and detailed

regulatory scheme with regard to the subject matter that the

local law attempts to regulate, the local interest must yield to

that of the State in regulating that field. We hold that the

State's comprehensive and detailed statutory and regulatory

framework for the identification, regulation and monitoring of

registered sex offenders prohibits the enactment of a residency

restriction law such as Local Law 4. 

I.

In 2001, defendant, a Nassau County resident, was

convicted of the crime of possessing an obscene sexual

performance by a child (Penal Law § 263.11). He served 22 months

in prison and, upon his release from custody, was classified a

level one sex offender under the Sex Offender Registration Act

(Correction Law art 6-C, § 168 et seq.). Defendant was

discharged from parole on August 19, 2004. In July 2008,

defendant reported his change of address to the New York State

Division of Criminal Justice Services. Upon receiving this

information, the Nassau County Police Department determined that

defendant had moved to an apartment located within 500 feet of

two schools. 

Defendant was charged by information with a violation

of Nassau County Local Law 4, which is codified in Nassau County

Administrative Code § 8-130.6. That provision states, in

relevant part, that "[i]t shall be unlawful for any registered

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sex offender to establish a residence or domicile where the

property line of such residence or domicile lies within: (1) one

thousand feet of the property line of a school; or (2) five

hundred feet of the property line of a park . . ." (Nassau County

Administrative Code § 8-130.6 [a] [1], [2]). The code defines a

"registered sex offender" as "a person who has been classified as

a Level 1, Level 2 or Level 3 sex offender and who is required to

register with the New York state division of criminal justice

services, or other agency having jurisdiction," pursuant to the

Sex Offender Registration Act, regardless of whether the sex

offender has actually registered (id. at § 8-230.2). 

Defendant moved to dismiss the information on the

ground that Local Law 4 and section 8-130.6 are preempted by

state law. The District Court of Nassau County granted the

motion and dismissed the charge on the ground that Local Law 4 is

preempted by New York's "comprehensive statutory scheme for sex

offenders." The Appellate Term reversed and reinstated the

information, holding that it could not discern any express or

implied intention by the Legislature through the enactment of the

Sex Offender Registration Act (and other state laws) to occupy

the entire field so as to prohibit the enactment of local laws

imposing "residency restrictions for sex offenders who are no

longer on probation, parole supervision, subject to a conditional

discharge or . . . seeking public assistance" (41 Misc 3d 36, 39

[App Term, 2d Dept, 9th and 10th Jud Dists 2013]). A Judge of

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this Court granted defendant leave to appeal. 

II.

Although a local government is constitutionally

empowered to enact local laws relating to the welfare of its

citizens through its police power, it is prohibited from

exercising that power through the adoption of local laws that are

inconsistent with the New York State Constitution or any general

law of the State (see NY Const, art IX, § 2 [c]; Municipal Home

Rule Law § 10 [1] [i]; [ii] [1] [a] [12]). This doctrine of

preemption is a significant restriction on a local government's

home rule powers because although localities are "invested with

substantial powers both by affirmative grant and by restriction

on State powers in matters of local concern, the overriding

limitation of the preemption doctrine embodies 'the untrammeled

primacy of the Legislature to act . . . with respect to matters

of State concern'" (Albany Area Bldrs. Assn. v Town of

Guilderland, 74 NY2d 372, 377 [1989], quoting Wambat Realty Corp.

v State of New York, 41 NY2d 490, 497 [1977]).

Beginning with enactment of the Sex Offender

Registration Act (SORA), the Legislature has passed and the

Governor has signed a series of laws regulating registered sex

offenders, including the Sexual Assault Reform Act (SARA) in

2000, the Sex Offender Management and Treatment Act (SOMTA) in

2007, and Chapter 568 of the Laws of 2008 (Chapter 568). Because

the Legislature has not expressly stated an intent to occupy the

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field of sex offender residency restrictions in the

aforementioned laws, our focus on this appeal is whether the

Legislature, by implication, has shown its intent to do so. 

III.

The doctrine of field preemption prohibits a

municipality from exercising a police power "when the Legislature

has restricted such an exercise by preempting the area of

regulation" (New York State Club Assn. v City of New York, 69

NY2d 211, 217 [1987], affd 487 US 1 [1988]; see Albany Area

Bldrs. Assn., 74 NY2d at 377). Although field preemption may be

"express" as evidenced by the Legislature's stated directive, it

may also "be implied from a declaration of State policy by the

Legislature . . . or from the fact that the Legislature has

enacted a comprehensive and detailed regulatory scheme in a

particular area" (Consolidated Edison Co. of N.Y. v Town of Red

Hook, 60 NY2d 99, 105 [1983] [citations omitted]). Intent to

preempt the field may "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., 74 NY2d at 377,

citing Robin v Incorporated Vil. of Hempstead, 30 NY2d 347

[1972]). 

The People assert that the statutes at issue (SORA,

SARA, SOMTA and Chapter 568) either do not specifically mention

residency at all or only tangentially touch upon residency by,

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for example, limiting travel by parolees and those on probation

in areas with schools or childcare centers, and other places

where children may congregate. Such "piecemeal" provisions, the

People contend, do not constitute the type of "comprehensive and

detailed regulatory scheme" from which preemption can be

inferred, and it necessarily follows that the Legislature meant

to leave to local governments the authority to impose residency

restrictions on registered sex offenders who are not on parole or

probation or subject to any type of supervision. But it is clear

from the State's continuing regulation with respect to

identification and monitoring of registered sex offenders that

its "purpose and design" is to preempt the subject of sex

offender residency restriction legislation and to "occupy the

entire field" so as to prohibit local governments from doing so

(see Robin, 30 NY2d at 350).2

 We therefore reverse the order of

the Appellate Term. 

IV. 

This State's foray into sex offender management began

in 1996 with the enactment of SORA, which addressed the

Legislature's concern about the "danger of recidivism posed by

sex offenders, especially those sexually violent offenders who

commit predatory acts characterized by repetitive and compulsive

behavior" (L 1995, ch 192, § 1). SORA, as its title makes clear,

2 In light of our holding that this is an issue involving

"field preemption," we do not address defendant's "conflict

preemption" argument. 

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is a registration and notification statute directed at protecting

the public from sex offenders, who, upon their release, are

assigned a risk level dependent upon whether their risk for reoffending is low (level one), moderate (level two) or high (level

three) (see Correction Law § 168-l [6] [a]-[c]). The offender is

required by law to register as a sex offender for a period that

correlates with his particular risk-level and designation (see

id. § 168-f; § 168-h [1]-[3]). The Legislature has described

SORA's registration requirement as "a proper exercise of the

state's police power regulating present and ongoing conduct" of

sex offenders (L 1995, ch 192, § 1 [emphasis supplied]). The

registration and notification requirements are, of course,

applicable statewide and are aimed at providing local citizens

and law enforcement agencies with critical information regarding

sex offenders residing within their respective jurisdictions (see

Correction Law §§ 168-f, 168-j). 

Four years later, in 2000, the Legislature passed and

the Governor signed the Sex Assault Reform Act which, as relevant

here, amended the Penal Law and the Executive Law to require the

imposition of a mandatory condition prohibiting sex offenders

placed on probation, conditional release or parole from entering

upon school grounds or other facilities where children receive

care ("school grounds mandatory condition") (2000 McKinney's

Session Law News of NY, Ch 1). As part of that law, Penal Law §

65.10 was amended to require that a court imposing a sentence of

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probation or conditional discharge upon a person convicted of an

enumerated sex offense3 and where the victim of the offense was

under the age of eighteen at the time the offense was committed,

direct that the offender "shall refrain from knowingly entering

into or upon any school grounds", as that term is defined in

Penal Law § 220.00 (14) (a), or any other facility of institution

that is "primarily used for the care and treatment of persons

under the age of eighteen . . ." (Penal Law § 65.10 [4-a] [a]). 

At the same time, Executive Law § 259-c (14) was amended to

require the parole board to impose the school grounds mandatory

condition on offenders of the aforementioned enumerated sex

offenses who are released on parole, who are conditionally

released or who are subject to a period of PRS. In 2005, the

Legislature extended the school grounds mandatory condition to

sex offenders designated level three pursuant to Correction Law §

168-l(6), and also adopted the broad definition of "school

grounds" set forth in Penal Law § 220.00 (14) (a), (b) (see 2005

McKinney's Session Law News of NY, Ch 544; see also Executive Law

3

 Those sex offenses are set forth in Penal Law articles

130 ("Sex Offenses"), 235 ("Obscenity and Related Offenses"), 263

("Sexual Performance by a Child") and Penal Law §§ 255.25,

255.26, and 225.27 (Incest in the third, second and first degree,

respectively). Initially, SARA imposed the school grounds

mandatory condition on an offender who committed "Incest" as it

was then referred to in former Penal Law § 255.25. In 2006, SARA

was amended to require the imposition of the mandatory condition

to the newly-enacted offenses of incest in the first, second and

third degree (2006 McKinney's Session Law News of NY, Ch 320). 

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§ 259-c [14]). 

The critical provision under SARA (as amended in 2005)

is its reference to this definition of "school grounds":

"(a) . . . 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 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 [14] [a],

[b] [emphasis supplied]).4

Courts have interpreted section 220.00 (14) as creating

a residency restriction prohibiting certain classes of sex

offenders from living within 1,000 feet of a school (see Terrance

v City of Geneva, 799 F Supp 2d 250, 255 [WD NY 2011]; People v

Blair, 23 Misc 3d 902, 908 [Albany City Ct 2009]; People v

Oberlander, 22 Misc 3d 1124 [A] [Sup Ct, Rockland County 2009]). 

The practical effect is that any sex offender who is subject to

the school grounds mandatory condition is unable to reside within

1,000 feet of a school or facility as defined in Penal Law §

4

 When SARA was enacted in 2000, the school grounds

mandatory condition prohibited sex offenders from actually going

inside the boundary line of a school. The 2005 SARA amendment

broadened the school grounds mandatory condition to 1,000 feet

beyond the boundary line. 

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220.00 (14) (b). Therefore, SARA's enactment, with its various

amendments over the years, provides clear evidence of the State's

intention to occupy the field with regard to sex offender

management, including where certain sex offenders may reside, and

it is of no moment that the defendant in this appeal does not

fall within the class of sex offenders who are subject to that

mandatory condition. 

Further evidence of the State's intent to occupy the

field of sex offender housing is found in the enactment of

Chapter 568 of the Laws of 2008. That chapter directed the

Division of Parole (DOP), Division of Probation and Correctional

Alternatives (DPCA) and the Office of Temporary and Disability

Assistance (OTDA) "to promulgate rules regarding the placement of

sex offenders" to address the inability of those agencies "to

locate suitable housing for convicted sex offenders" (Assembly

Mem in Support, Bill Jacket, L 2008, ch 568, at 7). Because the

lack of suitable housing created "an unacceptable high level of

concentration of sex offenders in certain residential areas,"

resulting in "an unnecessary risk to public safety," Chapter

568's objective was to remedy that problem by allowing the DOP,

DPCA and OTDA to consider certain relevant factors when

"investigating and approving the residences of sex offenders"

(id. [emphasis supplied]). 

In approving Chapter 568, the Governor stated that this

statute was necessary to address the challenges sex offenders

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faced upon leaving prison in light of the shortage of affordable

housing and the enactment of "well-intentioned" local ordinances

that imposed "even more restrictive residency limitations on

registered sex offenders" than the restrictions contained in SARA

(Governor's Approval Mem, Bill Jacket, L 2008, ch 568, at 6, 2008

NY Legis Ann at 1668-1669 [emphasis supplied]). The Governor

further acknowledged that this chapter "recognizes that the

placement of these offenders in the community has been and will

continue to be a matter that is properly addressed by the State,"

and that the chapter's guidelines would "balance" the competing

factors of public safety and the provision of suitable housing

for sex offenders, leading "to a coordinated and comprehensive

statewide policy that will both protect the public and ensure

that there is suitable and appropriate housing available for sex

offenders in every community in the State" (id. [emphasis

supplied]). 

Chapter 568 added new subdivisions to Executive Law §§

243 and 259,5 and Social Services Law § 20, by requiring certain

agencies to promulgate rules and regulations governing sex

offender placement and housing (see Executive Law § 243 [4]

[requiring the DPCA to give recommendations that include

guidelines and procedures concerning "the placement of sex

5 Chapter 568 amended Executive Law § 259 (5). That

provision was repealed in 2011; the substance of that provision

has since been relocated Correction Law § 203 (1) (see 2011

Session Law News of NY, Ch 62).

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offenders designated level two or level three sex offenders

pursuant to (SORA)," and requiring the regulations to direct

local probation departments to consider certain factors

concerning placement of such offenders]; Correction Law § 203 [1]

[requiring the State Commissioner of Corrections and Community

Supervision to promulgate similar rules and regulations for level

two and level three offenders who are released on presumptive

release, parole, conditional release or PRS]; Social Services Law

§ 20 [8] [a] [requiring the OTDA to promulgate rules and

regulations for the conditions under which local social services

officials may determine the placement of level two or level three

sex offenders who, upon their release, are expected to apply for,

or receive, public assistance and who are determined to be in

immediate need of shelter]). 

Pursuant to these regulations, regardless of whether

the level two or level three sex offender is sentenced to

probation or is released, the Legislature has determined that

placement of the sex offender is dependent on a number of

factors, all of which must be considered by the relevant agency. 

Such factors include the concentration of registered sex

offenders in a given area or municipality; the number of

registered sex offenders residing at a certain property; the

proximity of entities that have vulnerable populations; the sex

offender's accessibility to family members or friends or other

supportive services such as local sex offender treatment

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programs; and the availability of permanent, stable housing so as

to reduce the possibility that the sex offender will be transient

(see Executive Law § 243 [4] [a]-[e]; Correction Law § 203 [1]

[a]-[e]; Social Services Law § 20 [8] [b] [i]-[iv]6). 

The regulations promulgated pursuant to Executive Law §

243 (4), Correction Law § 203 (1) and Social Services Law § 20

(8) (a) all recognize that the placement and housing of sex

offenders "are areas that have been, and will continue to be,

matters addressed by the State, . . . [and] . . . further the

State's coordinated and comprehensive policies in these areas . .

." (9 NYCRR § 365.3 [b] [emphasis supplied] [level two and level

three sex offenders on probation]; 9 NYCRR 8002.7 [b]; 18 NYCRR

352.36 [a] [2]). The regulations also acknowledge that the

maintenance and location of acceptable housing for sex offenders

constitutes "an enormous challenge that impacts all areas of the

State" because sex offenders, upon release from prison, typically

return to the communities where they previously resided and the

proliferation of well-intentioned local ordinances imposing

residency restriction has hampered the ability of the State and

local authorities to address the difficulty in finding

6

 One factor that must be considered by local social

services officials but need not be considered by the other two

agencies is that the Department of Corrections and Community

Supervision must investigate and approve any placement of a level

two or level three sex offender by local social service officials

(see Social Services Law § 8 [b] [v]). Local social services

officials need not, however, consider the availability of stable

housing in determining placement. 

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appropriate housing for sex offenders (9 NYCRR 365.3 [d] [5]; 9

NYCRR 8002.7 [d] [5]; 18 NYCRR 352.36 [a] [4] [v]). 

Further evidence of the legislative scheme to regulate

sex offenders is the Legislature's enactment in 2007 of the Sex

Offender Management Treatment Act (L 2007, ch 7). This statute

created a procedure for the confinement of certain sex offenders

upon the expiration of their prison terms, resulting in their

transfer to secure treatment facilities (see Mental Hygiene Law

§§ 10.03 [e], 10.07 [f]). Those offenders who are deemed not to

require confinement are subjected to an outpatient regimen of

strict and intensive supervision and treatment ("SIST") (id. at §

10.07), including the potential designation of specific

residences or types of residence by the Department of Corrections

and Community Supervision (id. at § 10.11 [a] [1]). SOMTA was

enacted for the dual purposes of protecting the public from

recidivistic sex offenders while ensuring that sex offenders have

access to appropriate treatment (id. § 10.01 [a]-[c]). 

V.

The defendant in this appeal is a designated level one

sex offender, is not on probation or parole, nor is he subject to

conditional release or PRS. None of the aforementioned

provisions that even touch upon residency or placement apply to

him. Contrary to the People's contention, however, that does not

mean that the State has delegated to local governments the duty

of enacting residency laws concerning registered sex offenders. 

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Nor does it mean, as Appellate Term held, that "the Legislature

has chosen to limit its regulations over sex offenders and not to

enact a comprehensive legislative scheme in the area concerning

the residency restrictions of sex offenders who are not on

parole, probation, subject to conditional discharge or seeking

public assistance" (41 Misc 3d at 39). Rather, it is clear that

the State has been continuously active in this field and, as

such, it is evident that the State has chosen to occupy it.

What SORA, SARA, Chapter 568 and SOMTA represent is a

detailed and comprehensive regulatory scheme involving the

State's ongoing monitoring, management and treatment of

registered sex offenders, which includes the housing of

registered sex offenders. The monitoring and treatment of sex

offenders does not end when the sex offender is released from

prison. The State, through SORA, has devised a risk level system

to identify the offenders who are most likely to reoffend. That

system operates in tandem with SARA and Chapter 568, which refer

to risk levels in their determinations as to where certain

registered sex offenders are allowed. In the case of probation

or release from prison, State regulations require local probation

and parole officials to consider factors delineated by the State

in determining where level two and level three sex offenders are

to be placed. It is not coincidental that SARA and Chapter 568

do not address those registered sex offenders who are least

likely to reoffend, i.e., those designated level one, and instead

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focus on those sex offenders who have been designated as

exhibiting a moderate to high risk of recidivism, i.e., those

designated level two and three, respectively. This top-down

approach, with the State dictating the relevant factors that

local officials are required to consider when placing such

offenders in housing, plainly establishes that sex offender

registry restrictions are within the exclusive bailiwick of the

State and accentuates the State's intent to occupy the field. 

Residency restriction laws such as Local Law 4 encroach

upon the State's occupation of the field, "inhibit the operation

of [this] State's general law and thereby thwart the operation of

[this] State's overriding policy concerns" relative to the

identification, monitoring and treatment of sex offenders (Albany

Area Bldrs. Assn., 74 NY2d at 377 [citation and internal

quotations omitted]). They also collide with state policy by

prohibiting sex offenders who are on probation and parole from

living in housing that has been approved by the Division of

Probation and Correctional Alternatives and Division of Parole. 

Local residency restriction laws also hinder State-wide

uniformity concerning sex offender placement. SORA, SARA,

Chapter 568 and SOMTA are State-wide laws that apply to every

community, including those particular laws and regulations

regarding sex offender placement. Local Law 4 and similar laws

are easily passed and, understandably, receive local support,

but, as the State has acknowledged, communities in recent years

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have taken to shifting the burden of sex offender housing to

neighboring communities, thereby frustrating the State's policy

that each community bear the burden (see 9 NYCRR 365.3 [d] [5]

[noting that "it is not appropriate for any one community or

county to bear an inappropriate burden in housing sex offenders

because another community has attempted to shift its

responsibility for those offenders onto other areas of the

State"]; 9 NYCRR 8002.7 [d] [5] [same]; 18 NYCRR 352.36 [a] [4]

[v]). As such, the unmistakable intent of the State to preempt

the field prohibits their enactment. 

Accordingly, the order of the Appellate Term should be

reversed and the information dismissed.

* * * * * * * * * * * * * * * * *

Order reversed and information dismissed. Opinion by Judge

Pigott. Chief Judge Lippman and Judges Read, Rivera and AbdusSalaam concur. Judges Stein and Fahey took no part.

Decided February 17, 2015

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