The People, Respondent,v.Michael Diack, Appellant.BriefN.Y.January 5, 2015APL-2014-00041 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against MICHAEL DIACK, Appellant. >> >> BRIEF FOR RESPONDENT CARNELL T. FOSKEY, ESQ. NASSAU COUNTY ATTORNEY’S OFFICE Attorneys for Respondent By: LYNN, GARTNER, DUNNE & COVELLO, LLP Appellate Counsel 330 Old Country Road, Suite 103 Mineola, New York 11501 516-742-6200Of Counsel: Kenneth L. Gartner Joseph Covello Tiffany D. Frigenti Date Completed: June 19, 2014 To Be Argued By: Kenneth L. Gartner Time Requested: 30 Minutes i Table of Contents Page Table of Authorities ............................................................................................... iii Preliminary Statement .............................................................................................. 1 Local Law 4-2006 .......................................................................................... 8 Sex Offender Residency Laws in Other Localities ..................................... 10 Question Presented ................................................................................................. 10 Statement of Facts .................................................................................................. 11 State Laws Pertaining to Sex Offenders ...................................................... 14 a. Megan’s Law (Sex Offender Registration Act) [Correction Law Article 6-C, §§ 168 et seq.] .................................... 14 b. Sexual Assault Reform Act [Penal Law § 65.10 (4-a), Executive Law § 259-c(14)] ................... 15 c. Sex Offender Management Treatment Act [Mental Hygiene Law Article 10 §§ 10.01 et seq.] ........................... 17 d. Chapter 568 of the Laws of 2008 [Correction Law § 203(1) (formerly Exec. Law § 259(5)), Executive Law § 243(4), Social Services Law § 20(8)] ................... 18 ARGUMENT ......................................................................................................... 21 Point I The Appellate Term properly held that conflict preemption does not apply because the state laws do not specifically permit the conduct prohibited by Local Law 4-2006 ............................................ 21 ii Point II The patchwork of state law in this area is not a “comprehensive and detailed regulatory scheme,” and thus, as evidenced by the legislative histories, the State has not occupied the field of sex offender regulation ...................................................................................... 34 Conclusion ............................................................................................................. 48 iii Table of Authorities Page Federal Cases Doe v. Cuomo, ___ F.3d ___, 2014 WL 2696564 (2d Cir. 2014) ................................................26 Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997).............................................................................1, 2 McKune v. Lile, 536 U.S. 24 (2002) ................................................................................................. 2 Moore v. County of Suffolk, 2013 WL 4432351 (E.D.N.Y. 2013) ..................................................................... 5 State Cases Chwick v. Mulvey, 81 A.D.3d 166, 915 N.Y.S.2d 578 (2d Dep't 2010) ..................................... 21, 22 Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 N.Y.2d 99, 456 N.E.2d 487, 468 N.Y.S.2d 596 (1983) .......................... 34, 45 DJL Restaurant Corp. v City of New York, 96 N.Y.2d. 91, 749 N.E.2d 186, 725 N.Y.S.2d 622 (2001) ................... 28, 34, 35 Doe v. County of Rensselaer, 2009 WL 2340873 (Sup. Ct., Rensselaer County June 29, 2009) .......................40 Food Parade, Inc. v. Office of Consumer Affairs of County of Nassau, 19 A.D.3d 593, 799 N.Y.S.2d 55 (2d Dep't 2005) ................................................ 8 Hamblin v. Bachman, 2009 WL 1086779 (City Ct., City of Rochester 2009) .......................................... 3 Incorporated Vil. of Nyack v. Daytop Vil., 78 N.Y.2d 500, 577 N.Y.S.2d 215, 583 N.E.2d 928 (1991) ........................ 29, 42 iv Jancyn Mfg. Corp. v. Suffolk County, 71 N.Y.2d 91, 518 N.E.2d 903, 524 N.Y.S.2d 8 (1987)......................... 21, 34, 35 Knudsen v. Lax, 17 Misc.3d 350, 842 N.Y.S.2d 341 (Co. Ct., Jefferson Co. 2007) ........................ 3 Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 N.Y.2d 761, 543 N.E.2d 725, 545 N.Y.S.2d 82 (1989) .................................22 Lynch v. West, 24 A.D.3d 1050, 805 N.Y.S.2d 728 (3d Dep't 2005) ..........................................18 Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 417 N.E.2d 78, 435 N.Y.S.2d 966 (1980) ................................... 8 North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745, 871 N.E.2d 1133, 840 N.Y.S.2d 307 (2007) ................................. 2 People v. Blair, 23 Misc.3d 902, 873 N.Y.S.2d 890 (Albany City Ct. 2009) .................. 37, 39, 40 People v. Conti, 27 Misc.3d 453, 895 N.Y.S.2d 660 (City Ct., City of Dunkirk 2010) ............6, 27 People v. Cook, 34 N.Y.2d 100, 312 N.E.2d 452 , 356 N.Y.S.2d 259 (1974) ........................ 23-24 People v. De Jesus, 54 N.Y.2d 465, 430 N.E.2d 1260, 446 N.Y.S.2d 207 (1981) .............................46 People v. Gillotti, ___ N.Y.3d ___, 2014 WL 2573461 (2014) .......................................................... 2 People v. Oberlander, 2009 WL 415558 (Sup. Ct., Rockland Co. Jan. 22, 2009) ..................................37 People v. Stevens, 91 N.Y.2d 270, 692 N.E.2d 985, 669 N.Y.S.2d 962 (1998) ................................. 2 v Robin v. Incorporated Vill. of Hempstead, 30 N.Y.2d 347, 285 N.E.2d 285, 334 N.Y.S.2d 129 (1972) ...............................34 Sunrise Check Cashing and Payroll Services, Inc. v. Town of Hempstead, 91 A.D.3d 126, 933 N.Y.S.2d 388 (2d Dep't 2011) ..................................... 24, 26 Vatore v. Commissioner of Consumer Affairs of the City of New York, 83 N.Y.2d 645, 634 N.E.2d 958, 612 N.Y.S.2d 357 (1994) .................. 45, 46, 48 Federal Statutes U.S.C. §§ 16911 et seq. ............................................................................................14 State Statutes Article IX, § 2(c)(ii)(10) of the New York State Constitution .................................. 7 Banking Law § 369 ..................................................................................................24 Correction Law §§ 168f(1)-(3), 168-h .....................................................................15 Correction Law § 168-j(1) .......................................................................................15 Correction Law § 168-L(6)(c) .................................................................................15 Correction Law §§ 168-L(6), 168-q(1) ....................................................................15 Correction Law § 203(1) ....................................................................... 18, 19, 20, 23 Correction Law §§ 168-a(7), 168-d(3), 168-L(5)&(6), 168-m .......................... 14-15 Correction Law §§ 168-c(1)&(2), 168-f(4) .............................................................15 CPL 460.20 ..............................................................................................................13 Environmental Conservation Law § 23-2703(2) .....................................................34 Exec. Law § 259(5) ..................................................................................................18 Executive Law § 243(4) .............................................................................. 18, 19, 23 vi Executive Law § 259-c(14) ......................................................................... 15, 16, 20 Mental Hygiene Law §§ 10.11 .................................................................................17 Mental Hygiene Law § 10.11(a)(1) .................................................................. 17, 38 Mental Hygiene Law § 10.03(e) ..............................................................................17 Mental Hygiene Law §§ 10.05 .................................................................................17 Mental Hygiene Law §§ 10.06 .................................................................................17 Mental Hygiene Law § 10.07(f)...............................................................................17 Mental Hygiene Law § 10.03(I)...............................................................................17 Mental Hygiene Law § 10.03(q) ..............................................................................17 Mental Hygiene Law §§ 10.07(a)-(c) ......................................................................17 Mental Hygiene Law § 10.07(f)...............................................................................17 Mental Hygiene Law § 19.07 ...................................................................................30 Mental Hygiene Law § 23.01 ...................................................................................30 Mental Hygiene Law § 41.34 ...................................................................................31 Municipal Home Rule Law § 10(1)(ii)(12) ............................................................... 7 Municipal Home Rule Law § 10(1)(ii)(a)(12) ........................................................... 7 Penal Law § 65.10 ............................................................................................. 15, 16 Penal Law § 65.10 (4-a) .................................................................................... 15, 16 Social Services Law § 20(8) ............................................................................. 18, 23 vii State Regulations 14 NYCRR § 1010.4 ................................................................................................30 14 NYCRR §§ 1010 through 1030 ..........................................................................30 14 NYCRR 1030.1 ...................................................................................................30 18 NYCRR § 352.36(4)(v) ......................................................................................20 18 NYCRR § 352.36(b)(1) ............................................................................... 19, 23 9 NYCRR § 8002.7(d)(5) ........................................................................................20 9 NYCRR § 8002.7(f) ..............................................................................................28 9 NYCRR § 8002.7(f)(1) .........................................................................................20 9 NYCRR § 8002.7(f)(1)(I)-(v), (f)(2)(I) ................................................................20 9 NYCRR §§ 365.4(1) ................................................................................ 19, 20, 23 Administrative Code § 8 ................................................................................... 12, 13 Administrative Code § 8-130.2 .................................................................................. 9 Administrative Code § 8-130.6 ....................................................................... 6, 8, 22 Administrative Code § 8-130.6(a) ............................................................................. 9 NYCRR § 8002.7 .....................................................................................................42 Other Authorities All Politics Is Local: State Preemption and Municipal Sex Offender Residency Restrictions in New York State, 91 B.U. L. Rev. 1569 (2011) ...............................................................................10 Bill Jacket to L. 2005, c. 544, available at http://image.iarchives.nysed.gov/images/images/81751.pdf ......................... 37-38 viii Bill Jacket to L. 2007, c. 7, available at http://image.iarchives.nysed.gov/images/images/92563.pdf ...............................48 Bill Jacket to L. 2008, c. 568, available at http://image.iarchives.nysed.gov/images/images/144477.pdf .............................39 Context Sensitive Deference to Presidential Signing Statements, 120 Harvard. L. Rev. 597 (2006) .........................................................................41 DCPA, New York State Probation Sex Offender Management Practitioner Guide, (July 2009), available at http://dpca.state.ny.us/pdfs/sompractitionerguidanceluly2009.pdf .................................... 3 Dissemination of Information Concerning Residency Restrictions and the Monitoring of Sex Offenders, available at https://www.nassaucountyny.gov/website/GenericServices/docs/NassauCountyAdminCo de_Dec2010.pdf........................................................................................................ 8 Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential“Signing Statements,” 40 Admin L. Rev. 209, 223 (1988) .......................................................................41 NYS Sex Offender Residency Restriction Laws (Aug. 11, 2009), http://www.theparson.net/so/residencylaws.pdf ..................................................10 N.Y. State Div. of Criminal Justice Servs., Myths and Facts: Current Research on Managing Sex Offenders, (April 2008), available at http://www.criminaljustice.ny.gov/nsor/som_mythsandfacts.htm .......................37 N.Y. State Div. of Criminal Justice Services, State to sponsor training designed to assist communities with development of effective sex offender management, (May 23, 2008), available at http://www.criminaljustice.ny.gov/pio/press_releases/2008-05- 23a_pressrelease.html. ...........................................................................................36 N.Y. State Senate Committee on Crime Victims, Crime and Correction 2009-2010 Report, Effective Sex Offender Management in N.Y. State, p. 28 available at http://www.nysenate.gov/files/pdfs/CrimeCommitteeReport.pdf. ........................43 ix The Presidential Signing Statements Controversy, 16 Wm. & Mary Bill Rts. J. 11 (2007) ................................................................41 1 Preliminary Statement The Appellant in the instant case argues that convicted sex offenders, required to register as such with the State under New York’s Megan’s Law, but completely free from the scrutiny of probation, parole, or any other supervision, are free to move into areas close to or immediately adjoining the most vulnerable and enticing populations -- principally those which will bring them into close contact with children -- and that local governments are powerless to enact legislation preventing this. The Appellant says that this freedom for registered sex offenders has been prescribed by the New York State Legislature. The Nassau County District Court agreed with the Appellant, and so dismissed the criminal complaint charging him with violating a local law by moving into such an area and remaining there, for over a year, after notice. The local law, said the Nassau County District Court, was preempted. The Appellate Term, Second Department -- in the only appellate decision to have addressed this issue in New York -- disagreed, and so reversed the dismissal. In Doe v. Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997), the United States Court of Appeals for the Second Circuit held: Studies have shown that sex crimes are widespread, [citations omitted], and that their impact on both the victim and society as a whole is devastating …. * * * * 2 Some studies have also demonstrated that, as a group, convicted sex offenders are much more likely than other offenders to commit additional sex crimes. Accord, North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745, 752, 871 N.E.2d 1133, 840 N.Y.S.2d 307, 312 (2007); People v. Stevens, 91 N.Y.2d 270, 277, 692 N.E.2d 985, 669 N.Y.S.2d 962, 965 (1998). The Supreme Court has noted that “[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." McKune v. Lile, 536 U.S. 24, 33 (2002). As further observed in Doe v. Pataki, supra, 120 F.3d at 1276, the New York State Legislature has announced that: The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. Accord, People v. Gillotti, ___ N.Y.3d ___, 2014 WL 2573461 (2014) (“[T]he government has a[n] … interest in ‘the protection of the community against people who have shown themselves capable of committing sex crimes’ [citation omitted].”). Indeed, the New York State Division of Probation and Correctional Alternatives (“DCPA”), in its publication entitled “New York State Probation Sex Offender Management Practitioner Guidance” sets forth, at p. 4: 3 The Guiding Principles of the Standards are as follows: 1. Sexual offending is a behavioral disorder which cannot be “cured”. 2. Sex offenders are dangerous. 3. Community safety is paramount. DCPA, New York State Probation Sex Offender Management Practitioner Guide, (July 2009), available at http://dpca.state.ny.us/pdfs/sompractitionerguidanceluly2009.pdf. So prevalent is this concern that courts in this State have even held that a landlord’s insertion of a registered sex offender into an apartment adjacent to one occupied by a tenant and the tenant’s three young daughters constitutes a breach of the covenants of quiet enjoyment and good faith, justifying the tenant’s termination of the lease without penalty. Knudsen v. Lax, 17 Misc.3d 350, 842 N.Y.S.2d 341 (Co. Ct., Jefferson Co. 2007) (Harberson, J.); Accord, Hamblin v. Bachman, 2009 WL 1086779, at *1, n. 71 (City Ct., City of Rochester 2009) (Morse, J.). This basis for this concern is understandable. As reported in Jan Hoffman, “New Law Is Urged On Freed Sex Offenders,” New York Times, 1994 WLNR 3517388 (August 4, 1994), describing the case which prompted the nationwide enactment of what are known as “Megan’s Laws”: As far as his neighbors in Hamilton Township, N.J., knew, Jesse Timmendequas was a mild-mannered laborer who lived with two roommates in a cream-colored frame house at 27 Barbara Lee Drive and liked to show his new puppy to neighborhood children. It was only last weekend, after he was accused of strangling and raping Megan Kanka, a 7-year-old who lived just across the street at No. 32, that they learned 4 Mr. Timmendequas was a twice-convicted felon who had served six years for sexual assault. Both of his other victims were young girls. Mr. Timmendequas's housemates, neighbors also learned, had also served time for sex offenses. The Appellant points to a series of cases in nisi prius courts, and in other states, which have essentially agreed with the Appellant’s position, based on two arguments: (1) that to permit home rule on this issue would make the job of the state probation and/or parole departments -- in residentially placing those sex offenders who are under their supervision -- more inconvenient, by requiring them to obey local law (even though these agencies already instruct their officials to obey these local laws); and (2) that the State, in enacting sex offender registration requirements, “implicitly” meant to not only require registration, but to preempt every manner of regulation possible over convicted sex offenders, even though no residency controls were promulgated or mentioned, and no such policy by the State has been announced. None of the nisi prius court decisions, nor those from other states, are binding on this Court. Because their reasoning is flawed and illogical, this Court, respectfully, is free to chart its own course -- and should, it is respectfully urged, instead affirm the only appellate authority to have addressed the issue in New York: the Appellate Term decision which the Appellant here challenges, which rejects preemption, and sustains the power of local home rule. 5 In fact, in Moore v. County of Suffolk, 2013 WL 4432351, at *5 (E.D.N.Y. 2013) (Chen, J.), the United States District Court for the Eastern District of New York, writing prior to the instant Appellate Term decision, and taking note of the fact that “there is a substantial body of case law on the state law preemption issue, with every New York court that has addressed the issue finding that SORA preempts the local laws,” was sufficiently nonplussed by this trend that it did not determine the preemption issue, but, rather, stated (emphasis added): Notwithstanding the preliminary consensus established by these decisions, the State’s input would be [of] significant value and would greatly assist the Court in resolving the preemption question. * * * * Accordingly, the Court respectfully invites the Attorney General of New York State to appear as amicus curiae regarding the issue of state preemption … and to make any submissions to the Court and participate in any oral argument on this issue. The Attorney General declined the invitation to participate as amicus curiae. See Case 2:09-cv-02031-PKC-AKT, Document 92. The United States District Court still adamantly refused to find local sex offender residency restrictions preempted. Instead, the United States District Court is awaiting the decision of this Court, in this case, before ruling. 6 Thus, the issue remains novel and ripe for determination by this Court. See also People v. Conti, 27 Misc.3d 453, 895 N.Y.S.2d 660 (City Ct., City of Dunkirk 2010) (Drag, J.) (denying motion to dismiss a criminal information such as the one at issue in the instant case, alleging violation of a similar sex offender residency restriction). As explained in Conti, at 455, n. 1 (emphasis added): “[I]t is the public policy of this state to protect potential victims of a sex offender ... in limiting where such offender may go or work” (Knudsen v. Lax, 17 Misc.3d 350, 351, 842 N.Y.S.2d 341). Penal Law § 65.10(4–a) requires, as a mandatory condition of a sentence of probation or conditional discharge that a level three sex offender, or a person convicted of a specified sex offense whose victim was under the age of eighteen at the time of the offense, that such offender “refrain from knowingly entering into or upon any school grounds, as that term is defined in [Penal Law § 220.00(14) ].” Given the limited scope of Penal Law § 65.10(4–a), both as to the narrowly defined categories of offenders covered and the time limitations imposed on probation or conditional discharge sentences, local laws have emerged in order to “prohibit a sex offender from venturing within a designated distance from areas where children might be found, i.e., playgrounds, pools, schools” (Knudsen, 17 Misc.3d at 352, 842 N.Y.S.2d 341). This Court, respectfully, should affirm the decision of the Appellate Term, which reversed the Nassau County District Court, and held that the residency restrictions on sex offenders imposed by Nassau County Administrative Code § 8- 130.6, as enacted by Local Law 4-2006 -- similar to those enacted by 117 other localities throughout New York State -- are not preempted by New York State law. 7 The patchwork of unrelated piecemeal New York State legislation pertaining to sex offenders -- none of which directly relates to residency -- neither conflicts with the Nassau County law, nor comes anywhere near resembling the “comprehensive and detailed statutory scheme” that this Court has consistently held is necessary for a finding of implied preemption. Although the State, Nassau County, and other local jurisdictions share an important interest in protecting children from sexual predators, the different counties, incorporated cities and towns, and other localities in this vast State, differ in demographics and circumstances. Local governments are better positioned to make certain decisions regarding the unique needs of their citizens. Housing needs and residency -- like zoning -- are peculiarly matters of local concern, subject to local conditions, and were not removed from local control by the New York State Legislature. Article IX, § 2(c)(ii)(10) of the New York State Constitution, and Municipal Home Rule Law § 10(1)(ii)(12), both give Nassau County the power to adopt and amend local laws relating the “government, protection, order, conduct, safety, health and well-being of persons or property therein” as long as they are not inconsistent with the provisions of the Constitution or any general law of the State. N.Y. Const. art. IX, § 2(c)(ii)(10); MHRL § 10(1)(ii)(a)(12). Pursuant to this grant, local governments have “broad powers to enact legislation relating to the health 8 and welfare of [their] citizens.” Food Parade, Inc. v. Office of Consumer Affairs of County of Nassau, 19 A.D.3d 593, 595, 799 N.Y.S.2d 55 (2d Dep’t 2005), aff’d on other grounds, 7 N.Y.3d 568 (2006) (citing Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683, 417 N.E.2d 78, 435 N.Y.S.2d 966 (1980)). Pursuant to this power, Nassau County, has chosen to protect and safeguard the lives and well-being of the community, especially minors, from registered sex offenders, by prohibiting them from residing in close proximity to places where children could naturally congregate, such as schools and playgrounds, through its enactment of Local Law 4-2006. This common sense enactment is not in any way offensive to any scheme established by the New York State Legislature. Local Law 4-2006 Local Law 4-2006, as amended, is codified in Nassau County Administrative Code § 8-130.6 and related provisions of the Administrative Code Chapter 8, Title K, §§ 8-130.1 et seq. (“Dissemination of Information Concerning Residency Restrictions and the Monitoring of Sex Offenders”), available at https://www.nassaucountyny.gov/website/GenericServices/docs/NassauCountyAdminCode _Dec2010.pdf. It prohibits convicted sex offenders who are required to register under the Sex Offender Registration Act, Correction Law Article 6-C, §§ 168 et 9 seq., commonly known as Megan’s Law, from residing within one thousand feet of the property line of a school, five hundred feet of the property line of a park, or two thousand feet of the residence or workplace of their victims. See Nassau County Administrative Code § 8-130.6(a). 1 Sex offenders who are in violation of this provision must be given written notice of the violation and the opportunity to relocate within sixty days. Id. § 8- 140.7-a. If they do not do so they are subject to penalties of up to a $1,000 fine, a year in prison, or both. Id. § 8-130.11. Violation is a class A misdemeanor. Id. A grandfather clause exempts sex offenders who established residences or domiciles prior to the effective dates of the law. Id. § 8-130.8. 1 Administrative Code § 8-130.6(a) provides in pertinent part that: (a) It shall be unlawful for any registered 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; or 3) knowingly establishes a residence or domicile where the property line of such residence or domicile lies within two thousand feet of the property line of the residence or the workplace of such sex offender’s victim(s), unless otherwise ordered by a court having jurisdiction over said offender. Administrative Code § 8-130.2 (“Definitions”) provides in pertinent part that “ ‘Registered Sex offender’ shall mean a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register … pursuant to the provisions of article 6-C of the New York State Correction Law.” The prohibition on residing within 2,000 feet of a victim was added by Local Law 25-2009. 10 Sex Offender Residency Laws in Other Localities As of August 2009 some 117 localities throughout New York State -- including 21 counties, 16 cities, 48 towns and 32 villages -- had enacted local residency restrictions applicable to sex offenders. N.Y. State Div. of Criminal Justice Servs. (“DCJS”), NYS Sex Offender Residency Restriction Laws (Aug. 11, 2009). 2 Most of these bar some or all registered sex offenders from residing within distances ranging between 500 and 1,500 feet from schools, parks, or other locations where children are likely to be present. See id. This appeal presents the occasion for this Court to determine whether the sex offender residency restrictions enacted by over one hundred localities throughout the state have been implicitly prohibited by the New York State Legislature. For the reasons set forth below, Respondent respectfully submits that they have not, and that the decision of the Appellate Term should be affirmed. Question Presented Are the sex offender residency restrictions that have been enacted by over one hundred localities throughout New York State preempted by the handful of state laws pertaining to sex offenders -- none of which directly relate to residency? 2 A copy of this report is available at http://www.theparson.net/so/residencylaws.pdf, but is no longer available on the agency’s website. A complete copy of the later version of the report could not be located, but a law review reference to it indicates that the number of local laws was unchanged from the August version. Caitlin J. Monjeau, Note, All Politics Is Local: State Preemption and Municipal Sex Offender Residency Restrictions in New York State, 91 B.U. L. Rev. 1569, 1584, n.91 (2011). 11 Statement of Facts The Appellant, Michael Diack was convicted in 2001 of possessing child pornography under PL § 263.11. He served 22 months in prison. The Appellant was then released. He was designated a level one sex offender under New York’s “Megan’s Law.” The Appellant subsequently moved to an apartment located approximately five hundred feet from two Pre-K through 12 schools, including one for children with special needs. The Appellant’s choice of a residence in that location was in violation of Nassau County’s sex offender residency law, Local Law 4-2006. Similar to other residency restrictions adopted by municipalities across New York State, Local Law 4-2006, prohibits sex offenders required to register under Megan’s Law from residing within one thousand feet of a school, five hundred feet of a park, or two thousand feet of their victims. Appellant was notified of the violation. He was given an opportunity to relocate, as required under the law. Finally, after the Appellant failed to relocate for over a year, the Appellant was charged with violating Local Law 4-2006, a Class A misdemeanor. (A-2-3). The Appellant moved to dismiss the charge, arguing that Local Law 4-2006 is preempted by various state laws dealing with sex offenders. (A-4-7). Relying on 12 several other lower court decisions that had invalidated local residency laws on preemption grounds, the Nassau County District Court held that the State impliedly preempted the field of sex offender residency regulation, and granted the Appellant’s motion to dismiss on March 18, 2011. (A-7-10). Respondents appealed. The Appellate Term reversed, finding that Nassau County Local Law 4-2006 was not preempted by state law. (A-11-17). The Appellate Term stated: Penal Law § 65.10(4–a)(a) does not apply to the facts herein, and we find no conflict between Local Law 4– 2006 or Nassau County Administrative Code § 8–130.6 and Penal Law § 65.10(4–a)(a) or any other state laws relating to residency restrictions of sex offenders (see Correction Law art. 6–C; L. 2008, ch. 568; Executive Law § 243[4]; Executive Law former § 259[5]; Social Services Law § 20 [8][a] ). **** In our opinion, the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area of law concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance. While the Legislature has adopted a scheme with respect to registering sex offenders and notifying the public about sex offenders in their communities, we discern no express or implied sentiment by the Legislature to occupy the entire area so as to prohibit localities from adopting laws concerning residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or not seeking public assistance. “[T]hat the state and local laws 13 touch upon the same area is insufficient to support a determination that the state has preempted the entire field of regulation in a given area” (Incorporated Vil. of Nyack v. Daytop Vil., 78 N.Y.2d 500, 505, 577 N.Y.S.2d 215, 583 N.E.2d 928 [1991] [internal quotation marks and citations omitted] ). We find it implausible that there could be a need for state-wide uniformity for residency restrictions for such sex offenders given the fact that housing in rural areas is not necessarily in as high demand as it is in urban areas. Thus, local governments are better situated to promote the welfare of their citizens by enacting legislation restricting the residency of sex offenders who are no longer on parole, probation, subject to a conditional discharge or seeking public assistance. We therefore hold that Local Law 4–2006 and Nassau County Administrative Code § 8–130.6 are not preempted by state law (but see Doe v. County of Rensselaer, 24 Misc.3d 1215[A], 2009 N.Y. Slip Op. 51456[U], 2009 WL 2340873 [Sup. Ct., Rensselaer County 2009]; People v. Blair, 23 Misc.3d 902, 873 N.Y.S.2d 890 [Albany City Ct. 2009]; People v. Oberlander, 22 Misc.3d 1124[A], 2009 N.Y. Slip Op. 50274[U], 2009 WL 415558 [Sup. Ct., Rockland County 2009]). (A-15-16). Appellant filed for leave to appeal to pursuant to CPL 460.20. This Court granted leave on March 5, 2014. (A-1). The decision of the Appellate Term should, respectfully, be affirmed, because none of the state laws specifically permit the conduct prohibited by Local Law 4-2006, and further, the patchwork of unrelated state legislation pertaining to sex offenders comes nowhere near resembling the “comprehensive and detailed 14 statutory scheme” that this Court has consistently held is necessary for a finding of implied preemption. State Laws Pertaining to Sex Offenders The following state laws, or parts thereof, have been cited as preempting local residency laws: a. Megan’s Law (Sex Offender Registration Act) [Correction Law Article 6-C, §§ 168 et seq.] In response to the rape and murder of seven-year-old Megan Kanka in New Jersey in 1994 by a released sex offender, New York and many other states passed “Megan’s Law” statutes requiring such released offenders to register with local law enforcement authorities and authorizing the authorities to notify communities of their presence. 3 New York’s version of Megan’s Law, officially known as the Sex Offender Registration Act (“SORA”), was adopted by the State Legislature in 1995, L. 1995 c. 192, and is codified in Correction Law Article 6-C, §§ 168 et seq. SORA is solely a registration and notification statute. In fact, it contains no residency restrictions whatsoever. Specifically, SORA provides for (1) classification of released sex offenders into various categories based upon the nature of their crimes, criminal history, and the risk that they will re-offend [see Correction Law §§ 168-a(7), 168-d(3), 168- 3 In 1996, Congress passed and President Clinton signed a federal “Megan’s Law” requiring states to enact such measures. Pub. L. No. 104-145, 110 Stat. 1345 (1996) (now codified at 42. U.S.C. §§ 16911 et seq. (2006)). 15 L(5)&(6), 168-m] (2) varying registration requirements based upon this classification [see id. §§ 168f(1)-(3), 168-h], and (3) varying levels of community dissemination of and access to information about the offenders and their whereabouts based upon this classification [see id. §§ 168-L(6), 168-q(1)]. While offenders and their parole or probation officers are required to report any change of address to the State Division of Criminal Justice Services (“DCJS”) [id. §§ 168-c(1)&(2), 168-f(4)], and DCJS is required to relay this information to local law enforcement authorities [id. § 168-j(1)], the statute simply does not address the question of where offenders may or may not reside. b. Sexual Assault Reform Act [Penal Law § 65.10 (4-a), Executive Law § 259-c(14)] In 2000 the state enacted the Sexual Assault Reform Act, L. 2000, c. 1 (“SARA”), which, inter alia, added provisions to the Penal Law and the Executive Law prohibiting certain sex offenders on probation, parole or other early release or discharge status from entering upon the grounds of schools or child care centers. Id. §§ 8,9. As subsequently amended by L. 2005, c. 544, the Act now bars sex offenders on probation, parole or similar status, whose victims were under age eighteen, or who are designated as level three offenders under Megan’s Law, 4 from 4 A level three designation indicates a high risk of re-offense. See Correction Law § 168-L(6)(c). 16 knowingly entering a school or child care center or a public area within a thousand feet of a school. Penal Law § 65.10(4-a), Executive Law § 259-c(14). 5 SARA, like SORA (Megan’s Law), does not deal with residency at all. 5 Penal Law § 65.10(4-a), applicable to offenders on probation or conditional discharge, provides in pertinent part: 4-a. Mandatory conditions for sex offenders. (a) When imposing a sentence of probation or conditional discharge upon a person convicted of [a sex] 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 level three sex offender pursuant to subdivision six of section 169-1 of the correction law, the court shall require, as a mandatory condition of such sentence, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in subdivision fourteen of section 220.00 of this chapter, or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present …. Executive Law § 259-c(14) contains identical language applicable to offenders on parole or conditional release. Penal Law § 223033(14), referenced in both sections, provides: “School grounds” means (a) in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line or 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 any 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. 17 c. Sex Offender Management Treatment Act [Mental Hygiene Law Article 10 §§ 10.01 et seq.] The Sex Offender Management and Treatment Act (“SOMTA”), L. 2007, c. 7, Mental Hygiene Law (“MHL”) Article 10, §§ 10.01 et seq., is New York’s civil commitment law providing for the post-incarceration custody, treatment or supervision of certain sex offenders with mental illness predisposing them to the commission of further sex crimes. SOMTA provides for an initial determination of whether a sex offender who is about to be released from prison suffers from a “mental abnormality … that predisposes him or her to the commission of … a sex offense and that results in that person having serious difficulty in controlling such conduct,” MHL § 10.03(I); see id. §§ 10.03(q), 10.05, 10.06, 10.07(a)-(c), and, if so, a further determination of whether the offender is dangerous enough to require confinement in a secure treatment facility, id. §§ 10.03(e), 10.07(f). An offender found to have such a mental abnormality but not be dangerous enough to require continued civil confinement is instead subject to a “regimen of strict and intensive supervision and treatment” as an outpatient. Id. §§ 10.07(f), 10.11. The supervision requirements that can be imposed by the court under this regimen may include “specification of residence or type of residence” along with a host of other conditions. Id. § 10.11(a)(1). 18 This alternative to confinement in a secure facility for sex offenders subject to SOMTA is the only reference to residence in MHL Article 10. d. Chapter 568 of the Laws of 2008 [Correction Law § 203(1) (formerly Exec. Law § 259(5)), Executive Law § 243(4), Social Services Law § 20(8)] Chapter 568 of the Laws of 2008 required the issuance of regulations specifying “certain factors” “to consider” “when investigating and approving the residence of level two or three sex offenders” released on probation, parole or similar programs, or when placing paroled offenders in homeless shelters. Under Chapter 568, which is now codified in Correction Law § 203(1), Executive Law § 243(4) and Social Services Law § 20(8), 6 the current Department of Corrections and Community Supervision, Division of Probation and Correctional Alternatives (“DCPA”), and Office of Temporary and Disability Assistance, must promulgate guidelines for residence approval 7 or homeless shelter placement which include such factors as concentration of other sex offenders in the area, “proximity of entities with vulnerable populations,” “accessibility to family 6 Formerly Executive Law § 259(5). This law, which had been applicable to the former Division of Parole, was repealed and reenacted as Correction Law § 203(1) earlier this year when many of the responsibilities of the Division were transferred to the new Department of Corrections and Community Supervision. L. 2011, c. 62, pt. C, subpt. A; see Mark Bonacquist, Supplementary Practice Commentary, 2011 Electronic Pocket Part Update, to McKinney’s Correction Law Ch. 43, Art. 8. 7 The approval of a proposed residence has been held to be a valid condition for parole release. See Lynch v. West, 24 A.D.3d 1050, 805 N.Y.S.2d 728 (3d Dep’t 2005). 19 members, friends or other supportive services,” and “availability of permanent, stable housing.” 8 The regulations that have been issued pursuant to this requirement generally track the statutory language verbatim. See 9 NYCRR §§ 365.4(1) [probation], 8002.7(f)(1) [parole]; 18 NYCRR § 352.36(b)(1) [homeless shelter placement]. 9 8 Correction Law § 203(1), applicable to paroled offenders, provides: The commissioner shall promulgate rules and regulations that shall include guidelines and procedures on the placement of sex offenders designated as level two or level three offenders pursuant to article six-C of this chapter. Such regulations shall provide instruction on certain factors to be considered when investigating and approving the residence of level two or level three sex offenders released on presumptive release, parole, conditional release or post-release supervision. Such factors shall include the following: (a) the location of other sex offenders required to register under the sex offender registration act, specifically whether there is a concentration of registered sex offenders in a certain residential area or municipality; (b) the number of registered sex offenders residing at a particular property; (c) the proximity of entities with vulnerable populations; (d) accessibility to family members, friends or other supportive services, including, but not limited to, locally available sex offender treatment programs with preference for placement of such individuals into programs that have demonstrated effectiveness in reducing sex offender recidivism and increasing public safety; and (e) the availability of permanent, stable housing in order to reduce the likelihood that such offenders will be transient. Executive Law § 243(4) contains identical language applicable to offenders released on probation. Social Services Law § 20(8) contains nearly identical language applicable to the placement of offenders in homeless shelters, except that the last factor is “investigation and approval of such placement by the department of corrections and community supervision” rather than the availability of permanent housing. 9 The probation regulations add that consideration should also be given to location and age of the offender’s victim(s), “existence of and adherence to any order of protection … and restrictions as 20 The parole regulations delegate responsibility to “Parole staff” for “consideration” of the statutory factors and any other factors “as appropriate.” 9 NYCRR § 8002.7(f)(1) (“As appropriate, such investigation shall include but not be limited to, consideration being given to the following factors:” [sic] (emphasis added)). While the probation regulations are silent, both the parole and public assistance regulations specifically acknowledge that local ordinances are not nullities to be ignored, but are, rather, challenges which must be adhered to and overcome. As stated identically at 9 NYCRR § 8002.7(d)(5) and 18 NYCRR § 352.36(4)(v): The proliferation of local ordinances imposing residency restrictions upon sex offenders, while well-intentioned, have made it more challenging for the State and local authorities to address the difficulties in finding secure and appropriate housing for sex offenders. The DCPA itself, in the section of its New York State Probation Sex Offender Management Practitioner Guidance publication, supra, addressing to residence/distance” and “presence of persons under the age of 18 in the residence or proposed residence.” 9 NYCRR §§ 365.4(1) [following (e)]. The parole regulations add that the consideration should also be given to “the sex offender’s level of risk,” “the applicability of Executive Law section 259-c(14)” (i.e., the Sexual Assault Reform Act provision barring level three parolees or those who victimized children from going near schools or child care centers [see supra pp. 6-7]), and “the offender’s criminal history and present crime of conviction.” 9 NYCRR § 8002.7(f)(1)(I)-(v), (f)(2)(I). It is not clear if the parole regulations are still valid as they have not been repromulgated by the new Department of Corrections and Community Supervision as required by Correction Law § 203(1). See supra, n.7. 21 implementation of Chapter 568, instructs, at p. 18, compliance with local ordinances: Probation departments should also be aware of any local laws and ordinances that pertain to residency restrictions and exclusionary zones and confer with their legal representatives and the judiciary or other releasing authority. Argument Point I The Appellate Term properly held that conflict preemption does not apply because the state laws do not specifically permit the conduct prohibited by Local Law 4-2006. Under the preemption doctrine, a “local law may be ruled invalid as inconsistent with State law where an express conflict exists between the State and local laws.” Jancyn Mfg. Corp. v. Suffolk County, 71 N.Y.2d 91, 96-97, 518 N.E.2d 903, 524 N.Y.S.2d 8 (1987). Conflict preemption only applies “when the State specifically permits the conduct prohibited at the local level,” not where, as here, the Local Law prohibits conduct that the State law omits to address. Id. at 100 (emphasis added); see Matter of Chwick v. Mulvey, 81 A.D.3d 166, 167-68, 915 N.Y.S.2d 578 (2d Dep’t 2010) (Belen, J.) (“Under the doctrine of conflict preemption, a local law is preempted by a state law when a ‘right or benefit is expressly given . . . by . . . 22 State law which has then been curtailed or taken away by the local law.”) (quoting Jancyn, supra, 71 N.Y.2d at 97). In other words, “conflict preemption occurs when a local law prohibits what a state law explicitly allows, or when a state law prohibits what a local law explicitly allows.” Id. at 168. Therefore, “[t]he crux of conflict preemption is whether there is ‘a head-on collision between the . . . ordinance as it is applied’ and a state statute.” Id. (quoting Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 N.Y.2d 761, 764, 543 N.E.2d 725, 545 N.Y.S.2d 82 (1989)). Accordingly, the Appellate Term correctly found that no conflict existed between Local Law 4-2006 and any of the State laws relating to residency restrictions of sex offenders, stating: Penal Law § 65.10(4-a)(a) does not apply to the facts herein, and we find no conflict between Local Law 4- 2006 or Nassau County Administrative Code § 8-130.6 and Penal Law § 65.10(4-a)(a) or any other state laws relating to residency restrictions of sex offenders (see Correction Law art. 6-C; L. 2008, ch. 568; Executive Law § 243[4]; Executive Law former § 259[5]; Social Services Law § 20 [8][a] ). (A-14-15). Nevertheless, Appellant argues that Local Law 4-2006 conflicts with Chapter 568. 23 Pursuant to Chapter 568, the Department of Corrections and Community Supervision, DCPA, and Office of Temporary and Disability Assistance, must promulgate guidelines for residence approval or homeless shelter placement which include such factors as concentration of other sex offenders in the area, “proximity of entities with vulnerable populations,” “accessibility to family members, friends or other supportive services,” and availability of permanent, stable housing.” See Correction Law § 203(1); Executive Law § 243(4); Social Services Law § 20(8). Pursuant to this requirement, parole regulations delegate responsibility to “Parole staff” for “consideration” of the statutory factors and any other factors “as appropriate.” 9 NYCRR §§ 365.4(1) [probation], 8002.7(f)(1) [parole]; 18 NYCRR § 352.36(b)(1) [homeless shelter placement]. Because this power includes, among other things, the right to approve a particular residence where an offender can live, Appellant argues that a parole officer is implicitly entitled to approve a sex offender’s request to reside in a location prohibited by local law. The Appellant ignores the fact that, as noted above in Section (d), the State agencies themselves do not so interpret their power, but interpret their authority as limited by local ordinances. Still, Appellant argues that Local Law 4-2006 is preempted because it prohibits conduct that may be permitted by the State. However, this court rejected this precise argument in People v. Cook, 34 N.Y.2d 100, 109, 312 N.E.2d 452, 24 457, 356 N.Y.S.2d 259 (1974) (Rabin, J.). There, the Appellant contended that the New York City Tax Regulations on the sale of cigarettes requiring a price differential in the retail price of cigarettes conflicted with the State cigarette tax law which permitted “selling cigarettes without a price differential” because, according to the Appellant, a “locality may not ‘enact a local law which prohibits conduct permitted by State law.’ ” Id. This court rejected Appellant’s argument, stating: This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory. Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule. The case cited by Appellant, Sunrise Check Cashing and Payroll Services, Inc. v. Town of Hempstead, 91 A.D.3d 126, 933 N.Y.S.2d 388 (2d Dep’t 2011) (Dickerson, J.), is inapplicable. There, the Appellate Division, Second Department, found that a local law banning check cashing companies from much of the Town of Hempstead was invalid pursuant to the doctrine of conflict preemption because “[t]hrough the enactment and amendment of Banking Law § 369, the Legislature specifically delegated to the Superintendent of Banks the task of determining whether particular locations were appropriate for check-cashing establishments.” Id. at 138. The court stated: 25 It is true that “ ‘separate levels of regulatory oversight can coexist’ ” (DJL Rest. Corp. v City of New York, 96 NY2d at 97, quoting Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d at 507). “State statutes do not necessarily preempt local laws having only ‘tangential’ impact on the State's interests” (DJL Rest. Corp. v City of New York, 96 NY2d at 97; see Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d at 506). However, here, the facts of this case demonstrate that section 302 (K) has more than a tangential impact on the relevant Banking Law provisions. Section 302 (K) purports to accomplish the same function delegated by the Legislature to the Superintendent by making a determination as to the appropriate location for check-cashing establishments. By permitting such establishments to be located only within the Town's industrial and light manufacturing districts, section 302 (K) purports to divest the Superintendent of the authority to “determine whether there is a community need for a new licensee in the proposed area to be served” (Banking Law § 369 [1]). As a direct consequence of section 302 (K), existing check- cashing establishments at locations in the Town's business district, each of which was necessarily determined by the Superintendent to be appropriately located to serve a community need, will now find themselves in violation of a provision of the Town's Building Zone Ordinance. Because this violation does not exist under state law, and because the Legislature has vested the Superintendent with the authority to determine appropriate locations for check-cashing establishments, section 302 (K) is preempted by state law (see generally Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d at 764-765; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d at 97; New York State Club Assn. v City of New York, 69 NY2d at 217; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d at 108; Matter of Chwick v Mulvey, 81 AD3d at 167-168). Under the circumstances presented 26 here, “a ‘right or benefit [which was] expressly given . . . by . . . State law . . . has . . . been curtailed or taken away by’ ” section 302 (K) (Matter of Chwick v Mulvey, 81 AD3d at 167-168, quoting Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d at 97; see New York State Club Assn. v City of New York, 69 NY2d at 217). Accordingly, section 302 (K) cannot stand, as it is preempted by state law. Id. at 138-40. The Appellant argues that just as a local law restricting the placement of check-cashing establishments conflicted with a delegation of authority to the Superintendent of Banks to determine the propriety of check-cashing locations, a local law restricting the placement of sex offenders conflicts with a delegation of authority to the DCPA to determine the placement of sex offenders. However, this ignores an important and fundamental distinction. Check-cashing establishments are either in operation at a specific location -- or they are not. Level One sex offenders, however (with certain exceptions which may lengthen the period), are required to register for a period of twenty years. See, e.g., Doe v. Cuomo, ___ F.3d ___, 2014 WL 2696564 (2d Cir. 2014). Level Two and Three sex offenders are required to register for life. Id. 27 Parole and probation officers have the power to supervise the placement of sex offenders only while the sex offenders are in fact on probation or parole. 10 As astutely observed by the court in People v. Conti, supra, 27 Misc.3d at 455, n. 1, the local laws under scrutiny here have emerged specifically in reaction to “the narrowly defined categories of offenders covered and the time limitations imposed on probation or conditional discharge sentences” by state law. Under the Appellant’s conception, a registered sex offender who either is neither on parole or probation would be permitted to live anywhere, on an unsupervised basis, even though his or her registered sex offender status continues. Registered sex offenders who specifically are not placed, or are no longer, under the scrutiny of probation or parole, would be free to take up residence in close proximity to the most enticing and vulnerable victims. The Appellant argues that this is exactly the scenario which the New York State Legislature has contemplated and mandated. This result, however, cannot logically be inferred from the temporally limited authority to approve residency locations given to parole and probation officers for sex offenders solely when they are under supervision. 10 The only exception to this restriction is with respect to applicants for and recipients of public assistance, in which event the rules are to assist local social service officials. See, e.g., Wray v. County of Albany, Index No. 2622-08 (Albany Co.) (McDonough, J.). 28 Local Law 4-2006 does not conflict with any “right or benefit” expressly given by State law. See Jancyn, supra, 71 N.Y.2d at 97. Nor does Local Law 4- 2006 seek to accomplish a function which has been specifically delegated by the legislature, as the mere authority for parole or probation officers to consider the “proximity of entities with vulnerable populations” among the other statutory factors “as appropriate” does not trump local rules and regulations. See 9 NYCRR § 8002.7(f). State agencies do not have blanket authority to override validly enacted local laws dealing with health, safety and welfare, and do not themselves interpret the law or their own regulations as giving them that authority. Local Law 4-2006 is a valid action taken pursuant to legitimate, and recognized, health and safety concern. Appellant can point to no evidence that the residency requirement would “inhibit the operation of” the parole or probation staff and its ability to supervise the same probationer/parolee should he or she also be subject to Local Law. At most, Local Law only incidentally touches upon the Executive Law and the DCPA’s realm, which is insufficient to render the Local Law invalid on inconsistency grounds. DJL Restaurant Corp. v. City of New York, 96 N.Y.2d. 91, 97, 749 N.E.2d 186, 725 N.Y.S.2d 622 (2001). Furthermore, the local regulatory environment is in the context within which the state agency must carry out its assigned duties. Thus, while the parole or probation staff may have authority to approve where a probationer or parolee can 29 live, the DCPA would not have the authority to allow that individual to reside in a residence that violates local zoning, health or sanitation laws. The result should not differ with respect to the Local Law. As noted, supra, this point is expressly made by the DCPA itself in its New York State Probation Sex Offender Management Practitioner Guidance, at p. 18. In addition, the DCJS, in its “Frequently Asked Questions” on its website, provides: 13. Does the law restrict where a registered sex offender may live? The Sex Offender Registration Act does not restrict where a registered sex offender may live. However, if the offender is under parole or probation supervision, other New York State laws may limit the offender from living within 1,000 feet of a school or other facility caring for children. For more indepth information, click here. Additionally, there may be local laws in a particular county, city, town of village that restrict where a sex offender may live. For information on local laws, it is recommended that you contact the town, village, city or county in which you are interested. DCJS, Frequently Asked Questions, Answer to #13, available at http://criminaljustice.state.ny.us/nsor/faq.htm (last visited June 18, 2014) (emphasis added). In Inc. Vill. of Nyack v. Daytop Vill., Inc., 78 N.Y.2d 500, 506, 583 N.E.2d 928, 577 N.Y.S.2d 215 (1991) (Wachtler, C.J.), this Court held that the State’s laws dealing with substance abuse facilities did not preempt a village zoning law 30 where the legislature explicitly charged the DSAS “with the responsibility for establishing procedures and setting standards for the approval of substance abuse programs (Mental Hygiene Law § 23.01).” Id. The legislature further “empowered [DSAS] to ‘cooperate with and assist local agencies and community service boards in the development and periodic review of local comprehensive plans and programs for substance abuse services and approve such plans and programs’ (Mental Hygiene Law § 19.07 [b] [4])” and, as part of this approval process, required DSAS to “inspect and approve or disapprove the facilities of and the services provided by substance abuse programs (Mental Hygiene Law § 19.07 [b] [5]).” Id. Akin to the regulations adopted pursuant to Chapter 568, the detailed regulations at issue in Nyack, found in 14 NYCRR §§ 1010 through 1030, set out the scope of the approval process and the factors that must be considered in reviewing an application, including “‘the safety and adequacy of the physical plant for the program’ (14 NYCRR § 1010.4[b][1]) . . . [and] ‘the suitability and adequacy of the program based on appropriate criteria for the conduct of substance abuse services’ (14 NYCRR 1010.4[b][2]).” Id. In addition, the regulations set out “the physical specifications for each facility (see, e.g., 14 NYCRR 1030.1[g]), screening and admission procedures (14 NYCRR 1030.1[c],[d]), and the type of services to be provided (14 NYCRR 1030.1[e]).” Id. 31 Notwithstanding the “sweeping” State legislation regulating substance abuse facilities, this Court found that “[n]one of this, though leads to the conclusion that the State’s commitment to fighting substance abuse preempts all local laws.” Id. at 506-07. Upholding the local law, this Court stated: We note first that unlike the portion of the Mental Hygiene Law which regulates the siting of community residential facilities for the mentally disabled, article 19 does not expressly withdraw the zoning authority of local governments (see, Mental Hygiene Law § 41.34). Thus, our analysis necessarily revolves around whether there is implied preemption of the local zoning power. The Legislature's use of the word “comprehensive” in describing the State's policy toward substance abuse does not, in and of itself, resolve that question. The analysis is considerably more complex and must take into effect the interplay between State and local authority in this area. Both the State and the Village have important interests at stake in this controversy—the State in promoting its substance abuse policy, the Village in controlling its present shape and future growth. But these interests are not necessarily contradictory. While it is true that in this case there is unquestionably a potential for some conflict if a variance and certificate of occupancy, once applied for, are not granted, there will not be inconsistency in every case. State and local regulation of the placement of substance abuse facilities will not by their very nature produce conflict and inconsistency. Two separate levels of regulatory oversight can coexist. This, we believe, is one argument against a finding of preemption in this case. * * * * Thus, despite the fact that final approval power rests with DSAS, the statute clearly contemplates that officials from 32 all levels of government will come together in designing programs for the treatment of substance abuse. As we noted in People v. Cook, supra, the test is not whether the local law prohibits conduct which is permitted by State law, because that test is much too broad (id., 34 N.Y.2d at 109, 356 N.Y.S.2d 259, 312 N.E.2d 452; see also, New York State Club Assn. v. City of New York, supra, 69 N.Y.2d at 221, 513 N.Y.S.2d 349, 505 N.E.2d 915). Rather, as noted above, we look to whether the State has acted upon a subject, and whether “in so acting has evidenced a desire that its regulations should pre-empt the possibility of varying local regulations” (People v. Cook, supra, 34 N.Y.2d at 109, 356 N.Y.S.2d 259, 312 N.E.2d 452). While the State has expressed its recognition that substance abuse is a State- wide problem and has instituted a comprehensive policy for the treatment of this problem on both the State and local levels, we simply do not consider this sufficient to warrant a finding of preemption under the facts present in this case. There is no showing here that the Village of Nyack has effectively tailored its zoning laws to block the placement of substance facilities within its borders; in fact, two drug treatment programs are already in place there—a drug counseling program for youths and an in- patient drug treatment center offered by the local hospital. The Village is simply demanding that placement of the facility conform with regulations that are well within the Village's authority to impose (see, Matter of Ibero–American Action League v. Palma, 47 A.D.2d 998, 366 N.Y.S.2d 747). The Village has a legitimate, legally grounded interest in regulating development within its borders. Because we find that this interest is not preempted by State regulation of the licensing of substance abuse facilities, Daytop must apply for a variance and a certificate of occupancy and otherwise comply with the Village's zoning process. 33 Id. at 507-09 (emphasis added). Likewise, here both the State and the County have important interests at stake. Separate levels of regulatory oversight by the DCPA and the County coexist, as the laws are largely cooperative in nature and look toward a joint effort by State and local officials to protect the public. Furthermore, there is no showing that Nassau County has effectively tailored the Local Law to block the placement of sex offenders within its borders; rather the County is simply demanding that placement conform with regulations that are well within its authority to impose. Like the Village of Nyack, Nassau County has a legitimate, legally grounded interest in regulating the residency of sex offenders within its borders for the protection of its citizens. Accordingly, the DCPA recognizes that it must perform its obligations in compliance with the Local Law. By enacting the Local Law to regulate where a sex offender may reside, the County has only acted in furtherance of the purpose of general law as appropriate to the necessities of the locality. The Local Law supplements the existing statutory law by regulating where a sex offender can reside and is a proper action taken pursuant to its innate police power. Within the context of that particular and specific regulation, the DCPA still has the power to approve the precise living arrangement of all probationers and parolees, including those who come within the ambit of the Local Law. Therefore, 34 the Local Law does not conflict, expressly or implicitly with the State laws, and the Appellate Term finding that conflict preemption is inapplicable to the Local Law should be affirmed. Point II The patchwork of state law in this area is not a “comprehensive and detailed regulatory scheme,” and thus, as evidenced by the legislative histories, the State has not occupied the field of sex offender regulation. A local law may also be ruled preempted as inconsistent with State law “where the state has clearly evinced a desire to preempt an entire field.” Jancyn Mfg. Corp., supra, 71 N.Y.2d at 96. Field preemption may be either express or implied. 11 “The State Legislature may expressly articulate its intent to occupy a field” to the exclusion of local legislation by explicitly saying so in the state law. DJL Restaurant Corp., supra, 96 N.Y.2d at 95, n. 3 (citing Environmental Conservation Law § 23-2703(2), which states that “this title shall supersede all . . . local laws.”). Alternatively, field preemption may be implied in one of two ways. First, a “desire to preempt may be implied from a declaration of State policy by the Legislature.” Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 105, 456 N.E.2d 487, 468 N.Y.S.2d 596 (1983) (citing Robin v. Incorporated Vill. of Hempstead, 30 N.Y.2d 347, 350, 285 N.E.2d 285, 334 N.Y.S.2d 129 (1972)); 11 It is undisputed that there is no express preemption of Local Law 4-2006. 35 see DJL Restaurant Corp., supra, 96 N.Y.2d at 95. Second, field preemption may be implied “from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area.” Consolidated Edison Co., supra, 60 N.Y.2d at 105. The essential requisite of field preemption is that “the State has clearly evinced a desire to preempt an entire field,” Jancyn Mfg. Corp., supra, 71 N.Y.2d at 97, either by express statement, by policy declaration, or by implication from the comprehensive and detailed nature of its statutory scheme. The Appellate Term found no intent on behalf of the legislature to occupy the field of sex offender management, stating: In our opinion, the Legislature has not chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area of law concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance. While the Legislature has adopted a scheme with respect to registering sex offenders and notifying the public about sex offenders in their communities, we discern no express or implied sentiment by the Legislature to occupy the entire area so as to prohibit localities from adopting laws concerning residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to conditional discharge or not seeking public assistance.” (A-15-17). In fact, in a May 23, 2008 press release entitled “State to sponsor training designed to assist communities with development of effective sex offender 36 management strategies,” the DCJS included the following: “The management of sex offenders is one of the most vexing issues that local communities face,” DCJS Commissioner Denise E. O’Donnell said. N.Y. State Div. of Criminal Justice Services, State to sponsor training designed to assist communities with development of effective sex offender management, (May 23, 2008), available at http://www.criminaljustice.ny.gov/pio/press_releases/2008-05- 23a_pressrelease.html. Here, none of the state laws that have been cited as ostensibly preempting local residency laws, nor their legislative histories, evince any intent to preempt the fields of either sex offender regulation generally or sex offender residency regulation in particular. As set forth above, these four piecemeal enactments, including (1) SORA, (2) SARA, (3) SOMTA, and (4) Chapter 568, concern (i) the registration or commitment of sex offenders, or (ii) their release on probation, parole or similar programs. They (1) do not mention or impact residency at all, (2) touch on it only tangentially by limiting travel to areas with schools or child care centers, or (3) authorize courts or probation and parole officers to approve it. The laws, passed at various times, addressing disparate and discrete pieces of the larger problem of sex offender management, and codified in scattered sections of the Consolidated Laws, have never purported to comprehensively address this problem. 37 First, SORA is solely a registration and community notification statute and simply does not address the question of where offenders may or may not reside. Second, the relevant portions of SARA are parole and probation laws that therefore apply to covered sex offenders only during the relatively short period of time that they are in that status. As discussed above, these provisions bar level three offenders or those who victimized children from going near schools or child care centers while they remain on probation or parole. While some of the lower court decisions invalidating residency laws have suggested that this prohibition on knowingly entering a public area within a thousand feet of a school creates a de facto limitation on residency during this period. See People v. Blair, 23 Misc.3d 902, 908, 873 N.Y.S.2d 890 (Albany City Ct. 2009); People v. Oberlander, 2009 WL 415558, at *3 (Sup. Ct., Rockland Co. Jan 22, 2009). However, a discussion of the prohibition on the DCJS website flatly states that “New York State does not limit where a sex offender can live.” N.Y. State Div. of Criminal Justice Servs., Myths and Facts: Current Research on Managing Sex Offenders, (April 2008), available at http://www.criminaljustice.ny.gov/nsor/som_mythsandfacts.htm. Moreover, the Bill Jacket to L. 2005, c. 544, which added the 1,000-foot restriction to the Act shows that this was not the intent of the law. Indeed, the Bill Jacket does not contain a single reference to the law’s tangential effect on residency, or to sex offender residency at all. See Bill Jacket to L. 2005, c. 544, available at 38 http://image.iarchives.nysed.gov/images/images/81751.pdf. Therefore, there is clearly no basis for implying from this law a legislative intent to preempt the field of sex offender residency restriction. Third, SOMTA is even less relevant to sex offender residency. SOMTA’s sole reference to residency is the provision that the “strict and intensive supervision and treatment” imposed on offenders found to be mentally ill but not dangerous enough to require civil confinement may include “specification of residence or type of residence” along with a host of other conditions. MHL § 10.11(a)(1). Predictably, the 148-page Bill Jacket to this controversial civil commitment law contains only two fleeting and oblique references to this subsidiary provision, neither of which address the merits of the provision or the restrictions that should be imposed. See Bill Jacket to L. 2007, c. 7, available at http://image.iarchives.nysed.gov/images/images/92563.pdf. Fourth, and finally, Chapter 568 is a parole and probation law whose application is limited to sex offenders only during the relatively short period of time that they are in that status not the 20 years or life during which SORA registration requirements persist. The law also provides no rules with respect to where covered offenders may live, but merely requires the issuance of regulatory “guidelines” providing that parole and probation authorities should “consider” certain factors in approving residences for level two and three offenders, and 39 authorizing the parole staff to consider any other factors they wish “as appropriate.” Contrary to the findings of a few nisi prius and out-of-state courts, this does not present “compelling evidence of the State’s intent to occupy the field of sex offender regulation (including the residency of said offenders).” See People v. Blair, supra, 23 Misc.3d at 909. If the Legislature had truly intended to occupy the field of sex offender regulation with this ambiguous delegation of essentially standardless discretion to individual parole and probation officers, one would expect some indication of it in the legislative history. But, as with the legislative history of the other ostensibly preemptive state laws, there is no suggestion of any such intent. Indeed, the Division of the Budget Bill Memorandum noted that one argument in opposition to the proposed law was that it “fails to take into account local laws significantly restricting the residences of sex offenders which have been adopted by more than 90 municipalities, including some countries.” Bill Jacket to L. 2008, c. 568, available at http://image.iarchives.nysed.gov/images/images/144477.pdf. Similarly, the comments of the Office of Temporary and Disability Assistance contemplated the continued existence under the law of “local ordinances regarding sex offender residency restrictions.” Id. at 21 (Letter from 40 John P. Bailly, Jr., General Counsel, to Terryl Brown Clemons, Acting as Counsel to the Governor (Aug. 15, 22008), at 3). This is actually affirmative evidence that there was no legislative intent to preempt the field of sex offender residency regulation, or sex offender regulation generally, and thus supersede over a hundred local laws. Respondents’ primary reliance on the governor’s post-enactment Memorandum of Approval of Chapter 568 is unavailing. Several of the nisi prius court decisions invalidating local residency laws have cited the statement in Governor Paterson’s Memorandum of Approval of Chapter 568 that “[t]his bill 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.” See People v. Blair, supra, 23 Misc.3d at 910-11; Doe v. County of Rensselaer, 2009 WL 2340873, at *3 (Sup. Ct., Rensselear Co. June 29, 2009). This post-enactment snippet is entitled to little weight -- even if it were, arguendo, to be given the breathtakingly broad interpretation which the Appellant would impute to it. As discussed above, there are no such statements in the law’s pre-enactment legislative history. Neither the Memorandum in Support (Bill Jacket to L. 2008, c. 568, supra, p. 22, at 7) nor any other document in the Bill Jacket suggests an intent to make sex offender residency and placement the exclusive responsibility of the State, and indeed several references in the Bill Jacket 41 contemplate the continued existence under the law of local residency restrictions. See id., supra pp. 22-23. Courts and commentators are rightly skeptical of the attempted use of such executive signing statements and approval memoranda in interpreting and applying legislation. Thus, “courts have rarely relied on signing statements,” Note, Context Sensitive Deference to Presidential Signing Statements, 120 Harvard. L. Rev. 597, 600 (2006), because in a nutshell, “they can state a view that, while capturing the [executive’s] view of good law, could never have commanded majority support in the legislature.” Ronald A. Cass & Peter L Strauss, The Presidential Signing Statements Controversy, 16 Wm. & Mary Bill Rts. J. 11, 17 (2007). They therefore easily lend themselves to “manufacturing legislative history,” Note, supra, 120 Harv. L. Rev. at 602 n. 38, and indeed, Presidents and Governors “tend to rely on signing statements chiefly when their interpretations fail to garner support from a majority or plurality” in the legislative branch. Id. at 608; see Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential “Signing Statements,” 40 Admin L. Rev. 209, 223 (1988) (“Where the President’s views are not expressed in [pre-enactment legislative history], that fact in itself suggests that his views may have been rejected by key members of Congress.”). For this reason, reference to signing statements “in effect may grant a President the functional power to amend a bill already passed by Congress, without any requirement for 42 congressional approval over such amendments.” Id.; see generally Kristien G. Knapp, Resolving the Presidential Signing Statement Controversy: New York State as a Separation of Powers Laboratory, 6 Cardozo Pub. L. Pol’y & Ethics 737, 741, 754-55 (2008) (analogizing Presidential signing statements and Gubernatorial approval memoranda in terms of these concerns). The Appellant’s attempt to use the Governor’s Approval Memorandum here perfectly epitomizes these concerns. If interpreted as suggested by the Appellant -- which the Respondent urges would be a mistake -- it would attribute to the Governor an after-the-fact attempt to create a legislative history that reflected the Governor’s “view of good law” rather than the legislature’s actual intent. In fact, there is little reason to believe, and no evidence in the actual legislative history, that 211 New York State legislators intended to strike down over a hundred popular local laws adopted by their constituents. The policy statement of the DPCA and the 2009-2010 Report of the New York State Standing Committee on Crime Victims, Crime and Correction should similarly be given little weight if any. With respect to the statement of the DPCA in NYCRR § 8002.7, the “use of the word ‘comprehensive’ in describing the State's” [approach] does not, in and of itself” evince any intention on behalf of the legislature to preempt the field. Inc. Vill. of Nyack, supra, 78 N.Y.2d at 507. Rather, the policy statement merely serves as an acknowledgement by the DPCA 43 that exercise of its supervisory authority must be within the context of “local ordinances imposing residency restrictions.” Furthermore, the report of the New York Senate Standing Committee upon which Appellant relies was a result of two roundtables from which policy goals were merely “suggested” and “share[d] with our readers.” N.Y. State Senate Committee on Crime Victims, Crime and Correction 2009-2010 Report, Effective Sex Offender Management in N.Y. State, p. 28 available at http://www.nysenate.gov/files/pdfs/CrimeCommitteeReport.pdf. Contrary to Appellant’s contention, this report does not evince any intention on behalf of the legislature to preempt the field. The preemption case law bolsters the conclusion that the legislature did not intend to occupy the field. Indeed, this Court has required a far more “comprehensive and detailed regulatory scheme” than the piecemeal and scattershot state enactments here in order to imply legislative intent to preempt -- especially where, as here, there are no other indications of such an intent. The leading case of Jancyn Manufacturing Corp. v. Suffolk County, supra, is particularly instructive in this regard. In Jancyn this Court held that a Suffolk County local law prohibiting the sale or use of any cesspool additive without a determination by the County Health Commissioner that it would not “adversely affect the groundwaters” was not preempted by a contemporaneously enacted state law -- applicable only in Suffolk and Nassau Counties -- that barred certain such 44 additives outright and authorized the State Environmental Conservation Commissioner to ban others based upon the same review of groundwater impact as conducted by the County Commissioner under the local law. See id. at 93-94. While acknowledging that “at first glance” the legislative intent “would appear to be quite expansive,” id. at 98, and identical to that of the County, id. at 94, 99, this Court nonetheless found that there was no implied preemption because “the statutory scheme enacted by the legislature is not so broad in scope or so detailed as to require a determination that [it] has superseded all . . . local regulation.” Id. at 99. This Court noted that the fact “that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field.” Id. In reaching this conclusion, this Court stressed two factors: first, that the State statutory scheme was, in its view, “not nearly as broad” and far-reaching as the local law, since it was aimed at protecting the public from “only certain” rather than “all potential []” threats, id.; and, second, that “absent [from the State law] is any desire for across-the-board uniformity for the protection of the Long Island water supply” precluding local regulation. Id. at 98. Of perhaps particular note for the present case, this Court specifically rejected the contention that the fact “that the local law does not address a uniquely local problem” supported a finding that it was preempted. Id. at 99-100. 45 This Court similarly rejected a preemption claim in Vatore v. Commissioner of Consumer Affairs of the City of New York, 83 N.Y.2d 645, 634 N.E.2d 958, 612 N.Y.S.2d 357 (1994), upholding a New York City local law that prohibited cigarette vending machines in any public places except bars -- even though the State had passed a similar law that “permitted the siting of such vending machines in more places and with fewer restrictions” than the City law. Id. at 648. This Court stressed the same factors as in Jancyn, adding the consideration that preemption was particularly inappropriate where the state and local laws advanced the same policy interest: [T]he legislative declaration accompanying the Act does not contain an expression of need for uniform State-wide control of tobacco product vending machines, 3 nor is the statutory scheme so broad and detailed in scope as to require a determination that it has precluded all local regulation in the area, particularly where, as here, the local law would only further the State's policy interests (see, Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97-99). Id. at 650 (footnote omitted) (citing Jancyn, 71 N.Y.2d at 97-99). 12 In stressing these factors the Jancyn and Vatore Courts distinguished such cases as Consolidated Edison Co. v. Town of Red Hook, supra, 60 N.Y.2d 99 (invalidating local power plant licensing requirement), in which “the legislative 12 The Vatore Court also relied upon the fact that the state law did contain a narrow preemption provision applicable to only one section that was not at issue in the litigation, inferring “a concomitant intention not to give preclusive effect to any other section.” 83 N.Y.2d at 650. This does not detract from its reiteration of the rules set forth in Jancyn, however. 46 declaration accompanying the [State] enactment at issue specifically asserted a need for uniform State control of the regulation of utility siting,” Vatore, supra, 83 N.Y.2d at 649 (citing Consolidated Edison, supra, 60 N.Y.2d at 105-06), and People v. De Jesus, 54 N.Y.2d 465 (1981) (invalidating local bar curfew), in which it had found that “the elaborate and detailed regulatory scheme laid out in the Alcoholic Beverage Control Law, in conjunction with the declared goal of the statute . . . to ‘regulate and control the manufacture, sale and distribution within the state of alcoholic beverages,’ ... preempted the [local] regulation of establishments selling alcoholic beverages.” Vatore, supra, 83 N.Y.2d at 649-50 (citing De Jesus, supra, 54 N.Y.2d at 468-70); see also Jancyn, supra, 71 N.Y.2d at 98-99. In the present case, as in Jancyn and Vatore but unlike in Consolidated Edison or De Jesus, there is no statement in any of the state laws pertaining to sex offenders, or in the legislative history of any of these laws, of a “need for uniform State-wide control” or “across-the-board uniformity” in either sex offender residency regulation or sex offender regulation generally. Moreover, the fact that one may believe as a policy matter that there should be such uniformity is irrelevant to the preemption analysis where, as here, the legislature has not actually indicated such an intent -- as the Jancyn Court noted in rejecting the contention that the local environment law at issue there should be 47 preempted because it did “not address a uniquely local problem.” 71 N.Y.2d at 99- 100. Nor do the four scattered state laws in this area come anywhere near to approximating the kind of “elaborate and detailed regulatory scheme” embodied in a comprehensive code like the Alcoholic Beverage Control Law. Far from systematically addressing all facets of an issue as does a code such as the ABC law, these laws merely address isolated and discrete aspects of the far larger problem of sex offender management. Indeed, like the State law found in Jancyn to be “not nearly as broad” as required for preemption, these laws are aimed at protecting the public from “only certain” rather than “all potential[]” threats from sex offenders. See Jancyn, supra, 71 N.Y.2d at 99. In fact, each of the state laws here is far less comprehensive than the state laws found to be insufficiently comprehensive and detailed enough to give rise to implied field preemption in Jancyn and Vatore -- each of which was a cohesive statutory scheme embodied in a single, dedicated article of the Consolidated Laws. See Environmental Conservation Law art. 39, §§ 39-0101 et seq.; Public Health Law art. 13-F, §§ 1399-aa et seq. Further, these laws were found not to be preemptive even though they addressed the exact same subject matter as the competing local law, while as discussed none of the state laws here claimed to preempt local residency 48 restrictions or directly regulate or limit residency. Finally, it should be noted that, as in Jancyn and Vatore, Local Law 4-2006 and the other local residency restrictions “further the State’s policy interests,” Vatore, supra 83 N.Y.2d at 650 (citing Jancyn, supra, 71 N.Y.2d at 97-99), in that they serve the same goal of keeping sex offenders away from vulnerable populations as do the State laws in the area. Thus, as there is no State law specifically addressing the residency, these local laws should be regarded as complementing rather than conflicting with State law. Conclusion For the reasons set forth above, Respondents respectfully submit that this Court should affirm the decision of the Appellate Term. Dated: Mineola, New York June 19, 2014 LYNN, GARTNER, DUNNE & COVELLO, LLP Appellate Counsel to Respondent By: Kenneth L. Gartner 330 Old Country Road, Suite 103 Mineola, New York 11501 (516) 742-6200 Of Counsel: Kenneth L. Gartner Joseph Covello Tiffany D. Frigenti