Nassau Co.’s Limits on Sex Offenders Ejected

(CN) - Finding that New York places tough enough restrictions on sex offenders, the state's highest court sided with a Long Island sex offender living within 500 feet of two schools.

Nassau County passed Local Law 4 in 2006, prohibiting sex offenders from living within 1,000 feet from a school.

The Court of Appeals, New York's highest judiciary authority, noted Tuesday that dozens of other municipalities in the "state have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, daycare centers, parks, youth centers and other areas where children are likely to congregate."

"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," Justice Eugene Pigott wrote for the court. "Local governments have, understandably, relied on their police power in furthering that interest."

The court struck down the law Tuesday, however, in looking at the challenge of it brought by Nassau County resident Michael Diack, convicted in 2001 for possessing an obscene sexual performance by a child.

After spending 22 months in prison, Diack registered as a sex offender and finished his parole in 2004.

Nassau police caught up with Diack again in 2008, however, after determining that his newly reported change of residence was located within 500 feet of two schools.

Though a local judge dismissed the charge against Diack under Local Law 4 as pre-empted by state law, an intermediate appeals court reversed because it found that the New York Legislature never intended for the Sex Offender Registration Act to stand in for any local regulation of sex-offender residency.

Finding otherwise Tuesday, the Court of Appeals emphasized that "a local government's police power is not absolute."

"We hold that the atate's comprehensive and detailed framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4," Pigott wrote for the five-member court.

Contrary to the lower panel's ruling, the Legislature did seek to cover the sex-offender field of law when it passed the Sexual Assault Reform Act in 2000 and the Sex Offender Management and Treatment Act in 2007, the court found.

"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," Pigott wrote.

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