The question in this case is whether the Department of Corrections and Community Supervision (DOCCS) may house a level three sex offender in a residential treatment facility (RTF) during his term of supervised release.
The Sex Offender Registration Act (SORA) requires any person convicted of certain enumerated crimes to register with the State. An offender who is subject to SORA registration is assigned a designation based on the risk that he will reoffend–either level one, two, or three in ascending order of risk. State law imposes requirements that vary based on an offender’s level designation. For instance, the Sexual Assault Reform Act (SARA) requires that level three offenders reside more than 1,000 feet from any school.
In this case, petitioner was convicted of attempted sexual abuse in the first degree, sentenced to three years’ incarceration with a five-year term of post-release supervision, and adjudicated a level three sex offender. Petitioner violated the terms of his post-release supervision, but DOCCS agreed to re-release him after he completed a 90-day substance abuse program. Petitioner completed the program but failed to identify housing in the community that complied with the SARA requirement that he not live within 1000 feet of a school. DOCCS then transferred petitioner to one RTF and then another, at which point petitioner challenged DOCCS’ authority to retain him in an RTF. Supreme Court granted the petition and directed DOCCS to transfer petitioner out of the RTF.
The Second Department reversed. The court held that DOCCS was authorized to retain petitioner in an RTF under Correction Law § 73(10), which permits DOCCS “to use any residential treatment facility as a residence for persons who are on community supervision.” This authority, the court explained, was not limited by DOCCS’s additional authority under Penal Law § 70.45(3) to require an offender to spend the first six months of his post-release supervision in an RTF as a transitional period prior to re-entry into the community. Thus, the court held that Correction Law § 73(10) authorized DOCCS to place an offender in an RTF, even if the offender had completed more than the first six months of his post-release supervision.
The Court of Appeals granted petitioner leave to appeal.
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