This proceeding was originated by the Petition for a Writ of Habeas Corpus of Gregory Winters (hereinafter referred to as “Petitioner”), dated November 2, 2018 which was filed in the office of the St. Lawrence County Clerk on or about November 28, 20181. Petitioner, who is now an inmate at the Gouverneur Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Corrections and Community Supervision. The Court issued an Order to Show Cause on December 3, 2018. In response thereto, the Court received a Verified Answer and Return on February 11, 2019. No further response was received from the Petitioner.On August 13, 2013, the Petitioner was sentenced as a second felony offender by the Supreme Court, New York County, upon a guilty verdict after trial for the crime of Burglary in the Second Degree, a class C felony, to a determinate term of incarceration for a period of seven (7) years with a term of five (5) years post-release supervision. The Petitioner was received into the custody of the New York State Department of Corrections and Community Supervision (hereinafter referred to as “DOCCS”) on August 29, 2018. At that time, the Petitioner’s maximum expiration date was calculated to be March 12, 2019, with a conditional release date of March 12, 2018.2 Petitioner was previously convicted of Sexual Abuse in the First Degree and has been classified as a Level 3 Sex Offender.Petitioner seeks a writ of habeas corpus insofar as he has reached his Conditional Release date but has not been released due to the imposition of additional restrictions associated with his Level 3 Sex Offender classification. Petitioner argues that the instant offense is for Burglary and not a sex offense.The Respondent argues that the Petitioner is not entitled to immediate release as of the date of the petition insofar as he had not yet reached his maximum expiration date. Notwithstanding same, the Respondent further argues that despite the instant offense being a non-sex offense, the Level 3 Sex Offender Classification cannot be ignored when finding suitable release housing for the Petitioner.Preliminarily, it is noted that as of the date of this Decision, Order and Judgment, the Petitioner has been released to a Residential Treatment Center as he was still in the custody of DOCCS upon his maximum expiration date. Nonetheless, the merits of the petition will still be decided as DOCCS continues to bind the Petitioner in the Residential Treatment Center. Inasmuch as the matter was fully submitted just prior to the Petitioner’s transfer to another county outside the Fourth Judicial District, the Court retained jurisdiction to decide the petition.“[I]t is the expiration of the maximum sentence, and not the conditional release date, that is required to establish entitlement to release in a habeas corpus proceeding, and petitioner has not yet reached the maximum expiration of his sentence…” People ex rel. D’Amico v. Lilley, 153 AD3d 1493, 1494-95.As of the filing of the petition, to wit: November 28, 2018, the Petitioner had not yet reached his maximum expiration date. As such, he would not be entitled to immediate release. “It is well settled that an individual subject to an unexpired prison term may be held in prison pending the establishment of an approved residence, even though that person is otherwise entitled to be released to parole supervision (internal citations omitted).”People ex rel. Durham v. Dep’t of Corr. & Cmty. Supervision, 89 NYS3d 823, 824. Nevertheless, the transfer of Petitioner to a Residential Treatment Center does not moot his application. See, Gonzalez v. Annucci, 32 NY3d 461 (11/27/2018).Preliminarily, Respondents argue that (as of the date of the Return) the Petitioner is not entitled to habeas corpus relief insofar as he has only reached his conditional release date. Nonetheless, the Respondents allege that the Petitioner’s reading of Executive Law §259-c(14) is flawed as the statute applies to all level three sex offenders, in addition to those currently serving a sex offense for which the victim was less than eighteen years of age. Respondents further argue that if the Petitioner seeks to be relieved of the responsibilities associates with SARA, his better recourse would be to challenge his SORA designation as a level three sex offender.“Inasmuch as the amount of good time granted to a prisoner is not a right and ‘the determination to withhold good time did not render petitioner’s continued confinement pursuant to his original sentence unlawful’, habeas corpus relief is unavailable to challenge a determination of the time allowance committee. Moreover, the expiration of petitioner’s sentence is the point in time at which the right to release would accrue, not the conditional release date (internal citations omitted).” People ex rel. Richardson v. West, 24 AD3d 996, 997.Inasmuch as the Petitioner herein had only reached his conditional release date and not his maximum expiration, habeas corpus relief was not proper as of the filing of the petition. See, People ex rel. Justice v. Racette, 111 AD3d 1041. Notwithstanding same, insofar as the Petitioner has otherwise been granted parole release and but-for the administrative determination that he lacks adequate housing pursuant to SARA, this matter would be appropriate to convert to an Article 78 proceeding. As such, the Court will consider the merits of the petition as if it were a challenge to an administrative determination.The crux of the petition centers upon whether the language of Executive Law §259-c(14) appropriately applies to the Petitioner. The following is the relevant text therein:“14. notwithstanding any other provision of law to the contrary, where a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the penal law 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 one hundred sixty-eight-l of the correction law, is released on parole or conditionally released pursuant to subdivision one or two of this section, the board shall require, as a mandatory condition of such release, 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 the penal law3, 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, provided however, that when such sentenced offender is a registered student or participant or an employee of such facility or institution or entity contracting therewith or has a family member enrolled in such facility or institution, such sentenced offender may, with the written authorization of his or her parole officer and the superintendent or chief administrator of such facility, institution or grounds, enter such facility, institution or upon such grounds for the limited purposes authorized by the parole officer and superintendent or chief officer. Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender.” NY Exec. Law §259-c.It is noted that while such statutory provision does not specifically reference a parolee’s residence, case law has interpreted the 1000 foot buffer zone to include travel near any residence. See, Williams v. Department of Corrections and Community Supervision, 136 AD3d 147. As was discussed in Williams, the 1000 foot buffer zones often severely limit the areas in which the parolee can obtain housing. It is also noted that upon reaching the maximum expiration of an underlying sentence, the level three sex offender is not limited pursuant to the restrictions of SARA, but instead is subject to the statutes under SORA and chapter 568. See, People v. Diack, 24 NY3d 674.In the matter at bar, the Petitioner objects to the Respondents’ interpretation of the plain language of Executive Law §259-c(14) insofar as his instant offenses are not the basis of his SORA classification as a level three sex offender. Petitioner cites four other similar matters that have been presented to other Supreme Courts in the State for guidance.Petitioner finds support for his interpretation of the statute in People ex rel. Madison v. Superintendent, Index No. 291-2017 (Sup. Ct. Dutchess Co. 5/16/17). In Madison, Justice Grossman held that:“the plain language of the statute reflects that it is applicable ‘where a person serving a sentence’ for: (1) an enumerated crime where the victim is under 18 years old, or (2) has been adjudicated a Level 3 sex offender for that conviction. Reading further in the statute, as this Court is required to do, the subsequent language refers back to that specific person ‘serving a sentence,’ by referring to his/her four times as ‘such sentenced offender.’” Madison, p. 6.Justice Grossman distinguishes the holding in People ex rel. Negron v. Superintendent, Index No. 1673-2016 (Sup. Ct. Sullivan Co. 2/8/17) as “the cases upon which that court relies are factually distinguishable from those here.” Madison, p. 7. However, the pertinent portion of the holding in Negron, as well as the similar decisions in Matter of Cajigas v. Stanford, Index No. 655-16 (Sup. Ct. Albany Co. 2/10/17) and Matter of Walker v. Stanford, Index No. 3921-15 (Sup. Ct. Albany CO. 6/21/16), is that Executive Law §259-c(14) is not limited to the instant offense. A reading to the contrary fails to consider the intent of the 2005 amendment to SARA to include all level three sex offenders regardless of whether their current parole is related to a sentence for a sex offense. Pursuant to Correction Law §168-h(2), a sex offender who has been classified a level three offender will remain classified as such for life. As such, once classified as a level three sex offender, such designation remains with the person despite the nature of any subsequent criminal convictions. In other words, the designation will remain upon that person for all other programs, benefits, activities and limitations for the duration of his or her life. It would be nonsensical to separate the overarching classification of a level three sex offender from the terms of parole release from a sentence for a non-sexually related crime. Every aspect of the parolee’s life — employment, housing, treatment — will be under the ambit of being a level three sex offender. Executive Law §259-c(14) was amended to reflect such consideration and even if inartfully written, the intention of same cannot be denied. “In ascertaining the purpose and applicability of a statute, it is proper to consider the legislative history of the act, the circumstances surrounding the statute’s passage, and the history of the times.” Statutes Law §124; see also, Riley v. County of Broome, 95 NY2d 455, 463-64.“Inmates have no federal or state constitutional rights to be released to parole supervision before serving a full sentence. Pursuant to Executive Law §259-c (2) and 9 NYCRR 8003.3, special conditions may be imposed upon a parolee’s right to release. The courts routinely uphold these conditions as long as they are rationally related to the inmate’s past conduct and future chance of recidivism.” Williams v. Department of Corrections and Community Supervision, 136 AD3d 147, 158-59, appeal dismissed, 29 NY3d 990.Despite the Petitioner’s desire for the Court to essentially divorce his previous classification as a level three sex offender from any of the requirements for his current sentence’s parole eligibility, this Court declines such invitation. Clearly, the legislative intent in the 2005 amendment to SARA was to protect the most vulnerable citizens of society, school-aged children, from contact with parolees who are sex offenders — previously classified or current convictions. It is noted that the Petitioner’s criminal history indicates repeated arrests and convictions for sex-related crimes, particularly for sexual abuse without consent. As such, the Petitioner’s argument that “it defies common sense to think that the legislature concluded that children needed even more protection from level three sex offenders who had never victimized a child than it needed from sex offenders who had in fact victimized children” is disingenuous. Petition,27. Petitioner is a level three sex offender from whom children and vulnerable populations need to be protected.Inasmuch as the Petitioner has reached his maximum expiration date, the Petitioner is still not guaranteed immediate release in light of his SORA designation. Indeed, “by its terms, Penal Law §70.45(3) permits DOCCS to require an offender subject to a term of postrelease supervision to spend the first six months of his or her postrelease supervision in residential treatment facility housing as a transitional period prior to re-entry into the community.” People ex rel. McCurdy v. Warden, Westchester Cty. Corr. Facility, 164 AD3d 692, 694, leave to appeal granted, 32 NY3d 1084, 114 NE3d 1085 (2018).Based upon all of the above, it is, therefore, the decision of the Court and it is hereby ADJUDGED, that the petition is dismissed.Dated: March 28, 2019 atLake Pleasant, New York
