By Larry . . . These two appeals were consolidated as a result of unfavorable outcomes at the trial court. New York’s highest court considered constitutional challenges to the practice of temporarily confining level three sex offenders in correctional facilities, after the time they would otherwise be released to parole or post-release supervision (PRS), while the person remains on a waiting list for accommodation at a shelter compliant with Executive Law § 259-c (14). In each instance, the court concluded that New York law is narrowly tailored to target high-risk offenders; therefore, continued detention is not a constitutional violation.
This case is exceedingly complicated, which means that this analysis is only intended to summarize the outcome. A variety of novel challenges were raised which the court did not find compelling. For instance, Angel Ortiz, who had served his entire sentence, argued that the correctional facility he was transferred to upon completion of his term of incarceration should have operated more like a residence for him. He reasoned that since he had served his entire prison sentence, he wasn’t being punished any longer. He argued that he should have been permitted to come and go during the day with few restrictions. It is noteworthy that neither challenger invoked the New York Constitution even though it has been interpreted to provide greater protections than the U.S. Constitution. In footnote 7, the court stated in pertinent part, “Johnson and Ortiz mention in passing that we may consider New York’s increased constitutional due process protections under the State Constitution . . . ” The footnote further stated, “. . . Johnson and Ortiz do not contend that it is necessary to develop a state constitutional jurisprudence in this area in the absence of a fitting federal jurisprudence. In other words, they do not argue that we should use a different analytical framework from the Supreme Court in considering the constitutional claims they allege or articulate why state constitutional guarantees were violated if federal constitutional guarantees were not. Accordingly, we apply federal law.” This means that the court’s decision was based entirely on protections provided in the United States Constitution.
Petitioner Fred Johnson pleaded guilty in 2009 to persistent sexual abuse. Johnson had multiple prior sexual abuse convictions for rubbing his penis against women’s buttocks on subway trains in New York City. He was sentenced to an indeterminate prison term of two years to life. Johnson had a history of incarcerations followed by recidivism. Following a 2004 conviction of the same crime, he had been designated a level three sex offender under the Sex Offender Registration Act (SORA), and had been placed on lifetime parole supervision. Johnson appeared before the New York State Board of Parole in June 2017, seeking discretionary parole release. The Parole Board granted Johnson an “open parole date” of August 10, 2017. Based on his SORA risk level designation and the crime for which he was serving a sentence, Johnson was subject to the requirements of the Sexual Assault Reform Act (SARA) which prohibit a person from residing within 1,000 feet of a school. In his conditions of parole release, Johnson agreed that he would not be released until a residential address located outside the Penal Law definition of school grounds had been identified and approved. In November 2017, Johnson filed a petition for a writ of habeas corpus, pursuant to CPLR article 70, seeking immediate release from incarceration. In his as-applied constitutional challenge, Johnson contended,“. . . applying SARA’s housing restrictions to keep him in prison, after an open parole date for his release has been set, violates substantive due process by infringing on his fundamental right to be free from confinement.” It is noteworthy that Johnson did not challenge nor did he contend that SARA’s restrictions on where he can live after release are unconstitutional.
Petitioner Angel Ortiz pleaded guilty to robbery in the first degree and attempted sexual abuse in the first degree in 2008. It was his second criminal conviction for trying to coerce a person into having sex with him by means of physical force; his prior victim, a 13-year-old boy, and his 2008 victim were both able to flee before any sexual contact occurred. Ortiz was sentenced to a determinate sentence of 10 years’ imprisonment, to be followed by five years’ Post Release Supervision (PRS). Ortiz was designated a sexually violent level three sex offender under SORA and, like Johnson, was considered to be subject to SARA’s residency requirement while on PRS. The Board of Parole provided Ortiz with notice of the residency restrictions.
The maximum expiration date of Ortiz’s term of imprisonment was March 4, 2018. At that time, Ortiz was transferred to Fishkill Correctional Facility to begin the PRS portion of his sentence in a residential treatment facility (RTF). The following month, Ortiz was transferred to another RTF at Queensboro Correctional Facility. Ortiz sought permission to reside after his release in New York City. Unfortunately, the addresses he suggested were not SARA-compliant. When Ortiz was transferred to RTF housing, it placed him on its waiting list of inmates seeking SARA-compliant housing within the New York City shelter system. Ortiz was released to a SARA-compliant shelter on Wards Island in November 2018. In June 2018, Ortiz, filed a petition for a writ of habeas corpus, challenging his confinement.
PRIMARY CONSTITUTIONAL ARGUMENT
Under the Fourteenth Amendment to the United States Constitution, a state government may not deprive an individual “. . . of life, liberty, or property, without due process of law.” Opinion at 9. The Court held, “Johnson’s interest in being released to parole, after his open parole date had been announced, did not constitute a fundamental liberty interest,” and emphasized, “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence . . . ” Opinion at 11. The court noted, “Ortiz’s appeal introduces a closer question because his case does not involve a claimed right to parole release.” Opinion at 12. Ortiz asserted that his confinement to an RTF in prison-like conditions, after the maximum expiration date of his determinate sentence had passed, violated his fundamental liberty interest. However, like Johnson, Ortiz was subject to the SARA residency requirement and therefore his assignment to an RTF was based on a mandatory condition of his PRS.
The court held, “Requiring an individual who has not satisfied SARA’s housing restrictions to remain in an RTF until SARA-compliant housing is identified does not violate a fundamental liberty interest.” Opinion at 13.
NARSOL is disappointed with the decision because similar practices are occurring in other states. Undoubtedly, this will embolden those states to continue holding people in prison who have served their entire sentence. Since we have not spoken to the attorneys, we have no idea if they are planning to pursue this case any further. It would be our expectation that they will not since neither of the two are in custody.
 New York utilizes an individual risk assessment process to determine what threat a registrant poses to the community.
 Angel Ortiz was transferred to a residential treatment facility (RTF) at the conclusion of his prison sentence.
 Civil Practice & Local Rules.
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.