Supreme Court, Albany County, September 7, 2018

Center for Appellate Litigation (Anokhi A. Shah and Abigail Everett of counsel) for petitioner.

Barbara D. Underwood, Acting Attorney General (Brian W. Matula of counsel), for respondent.

This CPLR article 78 proceeding was originally commenced with the filing of a petition on December 20, 2017. Respondent filed an answer and exhibits on February 6, 2018. On March 21, 2018, petitioner filed a notice of motion to supplement the petition. The motion was granted by decision and order dated May 18, 2018. The petition has now been supplemented, respondent has answered the supplemental petition, and petitioner filed reply papers on July 27, 2018. The court conducted a conference off-the-record with counsel for both parties on August 15, 2018. Pursuant to an understanding reached at that conference, both sides submitted additional exhibits. On August 28, 2018, petitioner's counsel requested permission to submit a letter brief addressing the potential impact of the August 15, 2018 decision and order of the [*2]Appellate Division, Second Judicial Department in the case of People ex rel. McCurdy v Warden, Westchester County Corr. Facility (164 AD3d 692 [2018]). Respondent's counsel graciously consented and reserved an opportunity to respond. This case is now fully submitted.

Petitioner is in custody in the New York State prison system. In 2009 he pleaded guilty to one count of criminal sexual act in the first degree, a class B violent felony offense. He was sentenced to serve a determinate term of nine years in prison, to be followed by a period of postrelease supervision (PRS) of 15 years.

According to the papers submitted by respondent, petitioner's conviction resulted from his repeated sexual abuse of his four-year-old godson. The abuse is said to have taken place over a period of months. It included acts of oral sodomy as well as digital penetration of the child's anus.

Petitioner has an unblemished prison disciplinary record. Documentary exhibits submitted show that petitioner has not had a single rule infraction lodged against him. He apparently{**61 Misc 3d at 932} also participated in various programs offered to assist in his rehabilitation. As a result, petitioner was eligible for conditional release after having served six-sevenths of his nine-year sentence (see Correction Law § 803 [1] [c]).^[FN1] In anticipation of this conditional release, the Department of Corrections and Community Supervision (DOCCS) prepared the necessary paper work detailing the terms and conditions of petitioner's community supervision. These documents were duly executed. In addition, petitioner was brought back before the sentencing court for the requisite hearing under the Sex Offender Registration Act (SORA) (see Correction Law § 168-n). He was adjudicated to be a SORA level one offender, which is to say that he is ranked among those least likely to re-offend (see id. § 168-n [3]). Petitioner was not, however, conditionally released despite his eligibility.

When petitioner reached the maximum expiration date of his prison sentence, DOCCS prepared additional paper work detailing the terms and conditions of his release to PRS. These documents were also duly executed. They purport to reflect that petitioner was released to PRS on October 20, 2017. Petitioner, however, remains incarcerated at Fishkill Correctional Facility to this day.

Petitioner was allowed to leave the facility on three occasions. When he went into diabetic shock about a year ago, he was taken to Putnam Hospital for treatment. When he suffered a stroke shortly after his release from Putnam Hospital in October of last year, he was transported to Westchester County Medical Center for treatment. This year, when he suffered a heart attack, he was again brought to a local hospital. According to petitioner's papers, on all of these occasions he was handcuffed on the journeys to and from the medical facilities and remained under 24-hour guard while there. Counsel also states (and the affidavits of family [*3]members corroborate) that visitors were limited to persons previously approved for prison visits, and that the times and duration of visits were limited.{**61 Misc 3d at 933}

At present, petitioner is housed in the medical unit at Fishkill Correctional Facility. DOCCS paper work indicates that, as of August 13 of this year, the 63-year-old petitioner is "terminally ill, [has] diabetes, requires wound care . . . [and is] pending open heart surgery." In addition, petitioner is said to suffer from "right side weakness," has "some speech limitations," and "takes 18 different medications daily."

Various members of petitioner's family have offered to take him into their homes and care for him. His nephew, for example, who visits his uncle regularly, has offered his home in New Jersey as a residence for him. The nephew has even tried to rent an apartment for him on Staten Island. Nonetheless, petitioner is still in prison.

To understand how it has come to pass that a dying man remains incarcerated despite his having served more than his maximum prison sentence will, of course, require a discussion of the tangled web of circumstances that have enmeshed him. As a convicted sex offender whose victim was less than 18 years old, petitioner is subject to the strictures of the Sexual Assault Reform Act (SARA), which mandates as a condition of his PRS that he not knowingly enter within 1,000 feet of school grounds (see Executive Law § 259-c [14]). His inability to locate SARA-compliant housing is what cost him the opportunity for conditional release and is what keeps him a prisoner despite his having already served more than the maximum term of his incarceratory sentence. Petitioner's continuing inability to secure a residence acceptable to DOCCS and his resultant continued imprisonment is the reason for which the current proceeding was commenced.

The denial of petitioner's conditional release in 2016 despite his eligibility is understandable. Conditional release is discretionary (see e.g. Matter of Lynch v Annucci, 151 AD3d 1148, 1150 [3d Dept 2017], and cases cited therein). In the exercise of its discretion, the Board of Parole (a part of DOCCS) was empowered to determine that petitioner's lack of SARA-compliant housing militated strongly against conditional release. Indeed, were petitioner to have been granted conditional release without his having a residence outside the 1,000-foot boundary of school grounds, he may well have found himself in violation of the terms of his community supervision before the sun went down on the first day of his freedom. Accordingly, there was neither illegality nor abuse of discretion in the denial of conditional release. It was therefore appropriate{**61 Misc 3d at 934} that DOCCS held petitioner in custody up to his maximum expiration date in October 2017.

How is it, then, that petitioner was not released on his maximum expiration date? The Board of Parole has the authority under Penal Law § 70.45 (3) to "impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility." Here, the Board of Parole imposed such a condition on October 18, 2017. And so, we are told, petitioner was released to PRS and transferred to a residential treatment facility (RTF) upon the completion of his maximum sentence of imprisonment. The RTF to which petitioner was transferred is Fishkill Correctional Facility, the same facility in which he was confined prior to his nominal release. DOCCS is statutorily authorized to operate RTFs at its facilities (Correction Law §§ 2 [6]; 73 [1]; cf. Matter [*4]of Gonzalez v Annucci, 149 AD3d 256, 259 [3d Dept 2017], lv granted 29 NY3d 912 [2017]), and Fishkill Correctional Facility was duly designated for use as an RTF (7 NYCRR 100.90 [c] [3]).

Petitioner filed his initial petition while he was in the RTF at Fishkill Correctional Facility pursuant to the directive of the Board of Parole referenced earlier. Among his numerous complaints is his claim that Fishkill Correctional Facility is not properly designated an RTF because it is not "a community based residence in or near a community where employment, educational and training opportunities are readily available" (see Correction Law § 2 [6]). Unfortunately, this challenge is time-barred, as Fishkill Correctional Facility was designated an RTF more than four months before petitioner was transferred there (see CPLR 217; Matter of Gonzalez v Annucci at 261).^[FN2]

In April of this year, the "period not exceeding six months" during which petitioner remained incarcerated at Fishkill Correctional{**61 Misc 3d at 935} Facility pursuant to Penal Law § 70.45 (3) expired. Yet he remains incarcerated at Fishkill Correctional Facility. The justification for his continued imprisonment is now given as Correction Law § 73 (10). This provision states, "The commissioner [of DOCCS] is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board [of parole]."

Much of the time and effort expended by counsel in this proceeding has been focused on the debate as to whether the specific language of Penal Law § 70.45 (3) trumped the general language of Correction Law § 73 (10). While there are about as many trial-level decisions on one side of this question as on the other, binding authority has just been issued by the Appellate Division in the Second Judicial Department.^[FN3] In People ex rel. McCurdy v Warden, Westchester County Corr. Facility (164 AD3d 692, 694 [2018]), the Court unequivocally held, "The six-month limitation on residential treatment facility housing imposed by Penal Law § 70.45 (3) does not conflict with, or limit, the application of DOCCS's authority under Correction Law § 73 (10) 'to use any residential treatment facility as a residence for persons who are on community supervision.' "

The Kafkaesque irony of this situation is manifest. After having served the maximum term of his prison sentence, petitioner has been "released" to serve his "post-release supervision" [*5]in the prison in which he has been continuously confined. The only things changed are the labels: that which had been the prison is now called the residential treatment facility.

Historians report that Lincoln was reluctant to issue the Emancipation Proclamation because he knew that it would have no effect in liberating the slaves in the rebellious states. He is said to have likened his dilemma to the oft-repeated tale of the would-be schoolmaster who failed his interview by answering the question, "If I were to call a sheep's tail a leg,{**61 Misc 3d at 936} how many legs would a sheep have?" with the answer, "Five." As Lincoln understood all too well, saying that something is so does not make it so.^[FN4] The Union president's proclaiming the emancipation of the slaves in the Confederacy resulted in the manumission of no one. Likewise, calling a prison a residential treatment facility does not dull the razor wire, and saying that petitioner has been released does not make him a free man.

Respondent's position is that petitioner holds the key to the cell in his own hand. After all, the only thing petitioner needs to do is to "develop" (DOCCS's word) a "SARA-compliant residence." Indeed, as part of the discharge of DOCCS's statutory obligation under Correction Law § 201 (5) to assist petitioner in finding such a residence, DOCCS has recorded the dozens of separate occasions on which they have met with petitioner and have documented that he had "no new residence to propose."

Petitioner argues that DOCCS has not rendered him meaningful assistance in his efforts to find a suitable residence. He claims, for instance, that his nephew proposed several rental apartments to DOCCS as potential residences. He says that DOCCS refused to investigate whether any of these residences were SARA-compliant without a copy of a signed lease agreement. DOCCS denies this claim, though some of their submissions assert that they will only investigate an "established" residence for SARA compliance. Respondent does point out, though, that DOCCS went so far as to have investigators personally visit a hotel in the Bronx as a potential residence. They were unable to make contact with its manager despite repeated attempts.^[FN5]

It does appear from the documentary submissions that DOCCS's initial efforts at assisting petitioner in locating a suitable residence may have been somewhat tepid. As time progressed, however, their efforts were significantly increased. Indeed, during this period, Matter of Gonzalez v Annucci was decided. Gonzalez underscores "that the duties of DOCCS [to assist in finding appropriate housing] are affirmative and significant, not merely secondary to those imposed upon petitioner" (149 AD3d at 262). Respondent may well have been prompted to increase the effort on petitioner's behalf in light of this appellate determination.{**61 Misc 3d at 937}

Respondent's counsel has submitted documentation evidencing DOCCS's extraordinary efforts up to as recently as August 29 of this year in attempting to place petitioner in a suitable residence. In the past seven months alone, "44 potential medical facilities and Nursing Homes have been identified by DOCCS and investigated" (aff of Christina Hernandez, Aug. 29, 2018, [*6]para 15). Nonetheless, "[t]he facilities have been rejected because they are non-compliant, do not accept sex offenders or have no beds open" (id.). As the Director of Re-Entry Services at DOCCS concedes, "Petitioner's very serious health issues makes [sic] finding a SARA and Parole compliant and humane residence very difficult" (id. para 64).

On August 16 of this year petitioner signed and submitted an application for interstate transfer of parole to the State of New Jersey, in the hope that he can reside with his nephew and sister. That same day, "the Interstate Packet was transferred to the DOCCS Interstate Bureau for processing" (id. para 65). Yet it was learned at a conference held in this case on August 15 that petitioner's nephew's home is located literally around the corner from an elementary school. While New Jersey law has no geographic restrictions on where convicted sex offenders may reside after having served their prison time (see NJ Stat Ann § 2C:7-19 et seq.; G.H. v Township of Galloway, 199 NJ 135, 136, 971 A2d 401, 401 [2005]), the SARA-mandated residence restriction will likely follow petitioner as a specific individual condition of his transferred parole (see Interstate Commission for Adult Offender Supervision rule 4.103). It is therefore likely that, absent more, this option will prove to be another blind alley.

What is patently obvious at this point in time is that, despite two years' worth of effort, no SARA-compliant residence for this terminally ill individual in need of round-the-clock medical care is likely to be discovered. This is not for lack of trying. Petitioner's extended family and DOCCS have both expended significant amounts of time and effort, yet results are not forthcoming.

The peculiarity and poignancy of the present case is amplified when one considers that a different prison inmate suffering from the physical infirmities which now burden petitioner would be eligible for consideration for medical parole release after having served only one half of his or her determinate sentence for a crime similar to that of which petitioner stands convicted (see Executive Law §§ 259-r, 259-s). Here, however, {**61 Misc 3d at 938}petitioner has already served the maximum term of a nine-year sentence and yet remains incarcerated, nearly a year later, without any reasonable expectation of release. This situation is untenable.

The Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6 of the New York State Constitution guarantee due process protections for life, liberty and property. Those protections include both procedural and substantive safeguards (see generally People v Bell, 3 Misc 3d 773, 777 [Sup Ct, Bronx County, 2003, Price, J.], and cases cited therein). Procedural due process guarantees notice and an opportunity to be heard prior to adverse governmental action (id., citing Mathews v Eldridge, 424 US 319, 349 [1976]); substantive due process, on the other hand, serves to redress a wrong imposed by government action even if the procedures used were applied fairly (id., citing County of Sacramento v Lewis, 523 US 833, 840 [1998]).

Respondent raises throughout his papers the defense that petitioner has failed to exhaust his administrative remedies prior to having commenced this proceeding. Respondent's point is well taken: certain of petitioner's complaints, particularly those regarding the deficiencies in the program options available to him as well as his claim of inadequate treatment for his physical impairments should first have been raised through the inmate grievance process. But the requirement of exhaustion is not inflexible. When seeking administrative relief would be futile, or when a substantial constitutional question is in issue, exhaustion is not required (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; see also Matter of Friedman v Rice, 30 NY3d 461, 473-474 [2017]). Petitioner's substantive due process claim is therefore properly before the court despite petitioner's not having sought administrative relief.

The United States Supreme Court has expounded a two-part test applicable to substantive due process cases (Washington v Glucksberg, 521 US 702, 720-722 [1997]). The first prong of the test seeks to determine if a fundamental right is at stake (id.; Bell at 780). The second prong applies a strict scrutiny standard to determine whether a compelling state interest exists to justify the action complained of (id.).

Extended discussion of whether petitioner's liberty is a fundamental right at stake in this litigation is hardly necessary. Despite his having fully served the incarceratory portion of his sentence, petitioner remains in prison. That his prison{**61 Misc 3d at 939} has been designated an RTF is, for this petitioner, merely a fiction. His freedom of movement is as restricted now as it was before his putative "release" to PRS; nothing about his surroundings, options or opportunities has changed from when he was an inmate at Fishkill Correctional Facility to now, when he is on "community supervision" in name only. "The Constitution is not to be satisfied with a fiction" (Hyde v United States, 225 US 347, 390 [1912, Holmes, J., dissenting]).

This is not to say that every individual "housed" (to use the language of the Correction Law) at the RTF of Fishkill Correctional Facility pursuant to either Penal Law § 70.45 (3) or Correction Law § 43 (10) is de facto a prison inmate and not an individual on community supervision. It may well be that many—or even all—of the other individuals housed at this RTF are free to pursue employment outside the prison walls, to attend treatment programs away from the facility, or to engage in other activities in the community. What is clear is that this petitioner's life is substantively no different in any respect from the life of a prison inmate and that, therefore, his continued confinement at Fishkill Correctional Facility implicates his fundamental, constitutionally protected liberty interest.^[FN6]

The heart of the analysis is in the second prong of the substantive due process test. The test is whether, as applied to petitioner, a debilitated, terminally ill individual who has been classified by a court of competent jurisdiction as being in the category of sex offenders least likely to recidivate, there is a compelling state interest that mandates his continued incarceration beyond the maximum expiration date of his sentence. This is the ultimate question to which this case reduces, for the record is clear that petitioner, his extended family, and DOCCS as well, have all followed both the letter and the spirit of the law and have expended countless hours in an attempt to secure a SARA-compliant residence for petitioner. These efforts have all been in vain. The ineluctable result is and will continue to be petitioner's imprisonment. In short, the application{**61 Misc 3d at 940} of SARA to petitioner effectively converts his fully-served prison term into a life sentence.

That the protection of children from sexual assault is a compelling state interest is beyond [*7]argument. That the purpose of SARA is to help to reduce the risk of future sexual assaults on children is equally clear. One can debate (as petitioner's counsel have done zealously) the question of whether SARA achieves or runs counter to its intended purpose, yet such debate is for legislative and not judicial consideration (cf. People v Jones, 26 NY3d 730, 741 [2016], citing Matter of Manouel v Board of Assessors, 25 NY3d 46, 54-55 [2015] ["rejecting argument because it would 'risk encroachment on the legislature's lawmaking role' "]).

SARA often makes return to the community difficult for those offenders subject to its strictures (cf. Matter of Gonzalez; Alcantara; People ex rel. Green v Superintendent of Sullivan Corr. Facility, 137 AD3d 56 [2016]). The level of difficulty is increased when the offender seeks reintegration into a densely populated area such as New York City, where very few SARA-compliant homeless shelters exist and where there are far more residences within 1,000 feet of a school than there are residences more distant. In the present case, however, SARA does not make return to the community difficult for petitioner; SARA makes it a practical impossibility.

No law short of mandatory and immediate capital punishment could make sex offender recidivism impossible. SARA aims to lessen the likelihood of recidivism by separating some potential victims (i.e., children on or near school grounds) from convicted offenders. Yet it is reasonable to infer that the risk of recidivism would be extremely low for a 63-year-old, terminally ill, SORA level one sex offender suffering from diabetes as well as from the lasting effects of a stroke and a heart attack and who is living with round-the-clock medical care. Moreover, there are alternatives to SARA (e.g., electronic home monitoring) that could provide protections against recidivism by petitioner, and these protections could be far more effective than a mere geographic residence restriction.

In sum, the practical implication of SARA to this specific petitioner—namely, that although he has completely served out the maximum incarceratory portion of his sentence, he is nonetheless likely to die in prison—render this mandatory condition of release unconstitutional as applied to him. This is not to suggest in any way that this opinion should be read as a{**61 Misc 3d at 941} template for a "Get Out of Jail Free Card" for every child molester with acne, lactose intolerance or irritable bowel syndrome. On the contrary, the present determination is strictly tailored and limited to the unique facts of this particular case. It is the confluence of many circumstances, including petitioner's dire medical condition, the indiscernible difference between petitioner's life as a resident of the RTF at Fishkill Correctional Facility and his life as a prison inmate there, the complete lack of success of DOCCS—despite significant, if not valiant effort—in locating SARA-compliant housing, and the inability of petitioner and his family to provide a suitable SARA-compliant residence that render the resultant determination of unconstitutionality as applied to petitioner an inescapable conclusion. Moreover, the fact that the single otherwise viable potential residence identified for petitioner happens to be with his family in New Jersey, a state whose laws would not preclude petitioner (or any other convicted sex offender) from living within 1,000 feet of school grounds, is an additional unique circumstance which further militates in favor of this relief.

CPLR 103 (c) provides, in pertinent part, "If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." [*8]Here, while this matter was brought as a petition seeking CPLR article 78 relief, it is appropriate to convert it into an action for a declaratory judgment pursuant to CPLR 3001. That provision states, in pertinent part, "The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy." The determination that SARA is unconstitutional as applied to this petitioner shall therefore take the form of a declaratory judgment.

Additionally, petitioner has sought the alternative relief of habeas corpus under CPLR article 70. Inasmuch as petitioner has served his full prison sentence; inasmuch as he has also spent more than the six-month maximum period allowed under Penal Law § 70.45 (3) in the RTF; and inasmuch as the court has determined that SARA is unconstitutional as applied to him, there remains no further justification for his continued detention in the RTF under Correction Law § 73 (10) (see People ex rel. McCurdy v Warden at 694-695 ["DOCCS's authority to {**61 Misc 3d at 942}keep such an offender in residential treatment facility housing ends when the offender successfully identifies or otherwise obtains SARA-compliant community housing"]). As a result, since the relief available to petitioner is immediate release, the remedy of habeas corpus is available to him on this petition (see generally People ex rel. Douglas v Vincent, 50 NY2d 901 [1980]).

In light of the ultimate determinations made in the course of this proceeding, the court need not address petitioner's arguments raised under the Americans with Disabilities Act. The adjudication of this matter in petitioner's favor renders those arguments moot.

Finally, the court would like to commend counsel on both sides of the "v" for the high level of zeal and professionalism exhibited in the course of this litigation. In particular, the efforts of Anokhi A. Shah, Esq., the lead attorney for petitioner, deserve recognition. Less than a year out of law school when this petition was filed, she embodies the Zen maxim, "For the beginner there are many possibilities, for the expert there are but few." In advocating for her client, Ms. Shah based her arguments on constitutional, statutory, regulatory and decisional authorities grounded in both federal and state law. She left no stone unturned in her efforts to advance her client's interests. And kudos is also due to Assistant Attorney General Brian W. Matula, who put yeoman's efforts into the defense of his client's position. It is truly humbling to witness practitioners in the legal profession striving tirelessly and ethically in the pursuit of justice.

For the reasons stated above, it is ordered, adjudged and decreed that the geographical limitations of the Sexual Assault Reform Act are unconstitutional as applied to petitioner; and it is further ordered, adjudged and decreed that respondent may impose, as a requirement of petitioner's postrelease supervision, a reasonable alternative to the geographic limitations of the Sexual Assault Reform Act such as, but not limited to, electronic home monitoring; and it is further ordered, adjudged and decreed that petitioner is entitled to immediate release from custody to postrelease supervision; and it is further ordered, adjudged and decreed that respondent shall process petitioner's interstate transfer of parole with all deliberate speed; and it is further ordered, adjudged and decreed that this decision, order and judgment shall be stayed for 10 days from the date of service with notice of entry so that, inter alia,{**61 Misc 3d at 943} [*9]petitioner may arrange for transitional accommodations pending the completion of the interstate transfer of parole.