The question in this case is whether the statutory provision barring sex offenders from entering onto or living near school grounds applies to someone who has been adjudicated a Level III sex offender but whose predicate offense is not a qualifying offense.
In general, the Sex Offender Registration Act (SORA) groups sex offenders into three categories—Levels I, II or III—and imposes registration requirements depending on a sex offender’s category. An offender’s SORA level adjudication can also have implications outside the SORA registration context. For instance, it might trigger Executive Law § 259-c(14), which provides that certain sex offenders who are granted parole must be prohibited from going onto or living near school grounds.
This case turns on the interpretation of Executive Law § 259-c(14). That provision states that, “where a person serving a sentence for [a qualifying offense] and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a [SORA] level three sex offender,” the school-grounds restriction applies.
Defendant was adjudicated a Level III sex offender based on a 1994 sexual assault. Then, in 2005, he was convicted of attempted burglary and given an indeterminate sentence of 12 years to life. The State Board of Parole granted defendant parole but concluded that Executive Law § 259-c(14) applied. Based on that determination, the Board refused to release defendant because he proposed to live too close to a school.
Petitioner brought this habeas corpus proceeding to challenge his continued retention. He claimed that the school-grounds restriction from Executive Law § 259-c(14) would only apply if two conditions were met: (i) the defendant was serving a sentence for a qualifying crime; and (ii) either the victim was under 18 years old or the defendant was adjudicated a Level III sex offender. Since defendant was not serving a sentence for a qualifying crime at the time he was paroled, he claimed that the school-grounds restriction did not apply to him.
Supreme Court denied defendant’s habeas petition, but the Third Department reversed, adopting petitioner’s interpretation that Executive Law § 259-c(14) applied if either of two conditions was satisfied: (1) the offender was serving a sentence for one of the enumerated offenses whose victim was under 18 years old, or (2) the offender was serving a sentence for one of the enumerated offenses and was designated a risk level three sex offender. In the court’s view, this was the only interpretation that comported with the plain text of the statute.
The Third Department granted defendant leave to appeal to the Court of Appeals.