The People of the State of New York ex rel. Angel Ortiz, Appellant, v Dennis Breslin, Superintendent of Queensboro Correctional Facility, et al., Respondents.

Argued October 13, 2020; decided November 23, 2020

People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 174 AD3d 992, modified.

People ex rel. Ortiz v Breslin, 183 AD3d 577, modified.

In these appeals, we consider constitutional challenges to the practice of temporarily confining level three sex offenders in correctional facilities, after the time they would otherwise be released to parole or postrelease supervision (PRS), while they remain on a waiting list for accommodation at a shelter compliant with Executive Law § 259-c (14). In each case, we conclude that there was no constitutional violation.

In 2009, petitioner Fred Johnson, who had multiple prior sexual abuse convictions for rubbing his penis against women's buttocks on subway trains in New York City, pleaded guilty to persistent sexual abuse. He was sentenced to an indeterminate prison term of 2 years to life. Johnson had a history of incarcerations followed by [*2]recidivism. Following a 2004 conviction of the same crime, he had been designated a level three sex offender under the Sex Offender Registration Act (SORA), and had been placed on lifetime parole supervision.

Johnson appeared before the New York State Board of Parole in June 2017, seeking discretionary parole release. He{**36 NY3d at 193} maintained that a prison sex offender program had taught him to control his judgments and behavior. The Parole Board granted Johnson an "open parole date" of August 10, 2017.^[FN1]

Based on his SORA risk level designation and the crime for which he was serving a sentence,^[FN2] Johnson was subject to the requirement of the Sexual Assault Reform Act (SARA) that he not reside within 1,000 feet of a school (see Executive Law § 259-c [14]; Penal Law § 220.00 [14] [b] [defining "school grounds"]; People v Diack, 24 NY3d 674, 682 [2015]). In his conditions of parole release, Johnson agreed that he would not be released until a residential address "located outside the Penal Law definition of school grounds" had been identified and approved.

Johnson's own first suggestion of where he might live was not compliant with SARA's requirements and, therefore, he asked to be released to the New York City Department of Homeless Services (NYCDHS) shelter system. The New York State Department of Corrections and Community Supervision (DOCCS) added Johnson to its internal waiting list of inmates seeking SARA-compliant housing at one of the NYCDHS shelters, only a few of which meet SARA's geographic restriction. Johnson was kept in custody at Adirondack Correctional Facility until a bed in a SARA-compliant shelter became available for him in November 2019.

In November 2017, Johnson filed a petition for a writ of habeas corpus, pursuant to CPLR article 70, seeking immediate release from incarceration, and naming the Superintendent of Adirondack Correctional Facility and DOCCS as respondents. In his as-applied constitutional challenge, Johnson contended that "applying SARA's housing restrictions to keep him in prison, after an open parole date for his release has been set, violates substantive due process by infringing on his fundamental right to be free from confinement." Notably, Johnson did not {**36 NY3d at 194}contend that SARA's restrictions on where he can live after release are unconstitutional.

DOCCS answered the petition and countered that Johnson was under a sentence of life imprisonment and had no fundamental substantive due process right to be released from prison. The agency maintained that a rational basis justified its application of SARA restrictions.

Supreme Court denied Johnson's writ in March 2018. The Appellate Division affirmed in July 2019 (174 AD3d 992 [3d Dept 2019]). Johnson appeals as of right pursuant to CPLR 5601 (b) (1).

Petitioner Angel Ortiz pleaded guilty to robbery in the first degree and attempted sexual abuse in the first degree in 2008. It was his second criminal conviction for trying to coerce a person into having sex with him by means of physical force; his prior victim, a 13-year-old boy, and his 2008 victim were both able to flee before any sexual contact occurred. Ortiz was sentenced to a determinate sentence of 10 years' imprisonment, to be followed by five years' PRS. Ortiz was designated a sexually violent level three sex offender under SORA and, like Johnson, was considered to be subject to SARA's residency requirement while on PRS. The Board of Parole provided Ortiz with notice of the residency restrictions.

The maximum expiration date of Ortiz's term of imprisonment was March 4, 2018. At that time, DOCCS transferred Ortiz to begin the PRS portion of his sentence in a residential treatment facility (RTF) at Fishkill Correctional Facility, invoking its authority 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 [*3]transferred to and participate in the programs of a residential treatment facility" (Penal Law § 70.45 [3]).^[FN3] The following month, DOCCS transferred Ortiz to the RTF at Queensboro Correctional Facility.{**36 NY3d at 195}

Ortiz sought to reside after his release in New York City, where he had spent most of his life and where his close relatives lived, but the addresses he suggested were not SARA-compliant. When DOCCS transferred Ortiz to RTF housing, it placed him on its waiting list of inmates seeking SARA-compliant housing at an NYCDHS shelter. Ortiz was released to a SARA-compliant shelter on Wards Island in November 2018.

In June 2018, Ortiz, like Johnson, filed a petition for a writ of habeas corpus, challenging his confinement. He named the Superintendent of Queensboro Correctional Facility and DOCCS as respondents. In his as-applied challenge, Ortiz maintains that, by confining him, DOCCS violated both his substantive due process "right to serve his term of post-release supervision in the community" and the constitutional prohibition on cruel and unusual punishments. Like Johnson, Ortiz does not contend that SARA cannot lawfully restrict where he may live after release.

As an alternative to his request for immediate release, Ortiz asked that he "be allowed to treat Queensboro [Correctional Facility] as a residence—albeit with a curfew, like other shelters—rather than a prison."

DOCCS responded that because Ortiz was not in compliance with the mandatory condition of the SARA residency requirement, he had no fundamental substantive due process right to be released from prison and that no violation of the Eighth Amendment had occurred. The agency, as in Johnson, insisted that a rational basis justified its application of SARA.

Supreme Court denied Ortiz's writ in September 2018. The Appellate Division affirmed in May 2020 (183 AD3d 577 [2d Dept 2020]).^[FN4] Ortiz appeals as of right pursuant to CPLR 5601 (b) (1).

[1] In Johnson, respondents argue that the appeal is moot. Respondents note that Johnson was released on parole from Adirondack Correctional Facility and no longer seeks habeas corpus relief. Johnson maintains that the appeal falls within{**36 NY3d at 196} the traditional exception to the mootness doctrine allowing courts "to consider substantial and novel issues that are likely to be repeated and will typically evade review" (Matter of Gonzalez v Annucci, 32 NY3d 461, 470 [2018], citing Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). The parties do not dispute the significance of the issues presented or their likelihood of repetition, but they differ on whether the issues typically evade review. On this question, we agree with Johnson that the issues presented in his appeal "typically will evade our review" (People ex rel. McManus v Horn, 18 NY3d 660, 664 [2012]).

Because Johnson no longer seeks release from Adirondack Correctional Facility, habeas does not lie, and we convert Johnson's habeas corpus proceeding to a declaratory judgment action (see People ex rel. DeLia v Munsey, 26 NY3d 124, 134 [2015]; McManus, 18 NY3d at 664 n 2).

Similarly, petitioner Ortiz has been released and is no longer entitled to habeas relief. Ortiz's release occurred prior to the Appellate Division's decision, yet that Court declined to dismiss, holding that the matters raised by Ortiz's appeal "are important issues that are likely to arise in other cases but also likely to evade review" (183 AD3d at 579). We agree that these issues should be reviewed (see generally Gonzalez, 32 NY3d at 470-471). As in Johnson, we convert the habeas proceeding in Ortiz to a declaratory judgment action.

The provision of SARA that underlies the appeals before us, Executive Law § 259-c (14), was enacted in 2000, with significant amendments in 2005 (see L 2000, ch 1, § 8, as amended by L 2005, ch 544, § 2). The statute applies to any defendant who is serving a sentence for various enumerated sex offenses, when the victim of the offense was under the age of 18 at the time of the offense or, as in these appeals, the defendant has been designated a [*4]level three sex offender.^[FN5] Executive Law § 259-c (14) provides that, when such a sex offender "is released on parole or conditionally released pursuant to subdivision one or two of this section," DOCCS must "require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school{**36 NY3d at 197} grounds, as that term is defined in subdivision fourteen of section 220.00 of the penal law."^[FN6]

As amended in 2005, Executive Law § 259-c (14) adopts the broad definition of "school grounds" set forth in the Penal Law. The term means "any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school or any parked . . . vehicle located within one thousand feet of the real property boundary line comprising any such school" (Penal Law § 220.00 [14] [b]). Consequently, section 259-c (14) has been interpreted to prohibit a person subject to the law from living within 1,000 feet of a school. "The practical effect is that any sex offender who is subject to the school grounds mandatory condition is unable to reside within 1,000 feet of a school or facility as defined in Penal Law § 220.00 (14) (b)" (Diack, 24 NY3d at 682).

New York statutes allow DOCCS to place a SARA-restricted sex offender temporarily in an RTF, until SARA-compliant housing is identified (see People ex rel. McCurdy v Warden, Westchester County Corr. Facility, 36 NY3d 251 [2020] [decided today]). We must now decide whether the Federal Constitution allows DOCCS to place a SARA-restricted sex offender in an RTF or other correctional facility, while awaiting SARA-compliant housing.^[FN7]

{**36 NY3d at 198}The principal issue with respect to the substantive due process claims is whether we should apply strict scrutiny or the rational basis test.

Under the Fourteenth Amendment to the United States Constitution, a state government may not deprive an individual "of life, liberty, or property, without due process of law" (US Const, Fourteenth Amend, § 1). The Supreme Court has interpreted the guarantee of "due process of law" in the Fifth and Fourteenth Amendments to include "a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them" (Zinermon v Burch, 494 US 113, 125 [1990] [internal quotation marks and citation omitted]). Incarceration undoubtedly invokes substantive due process rights. "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action" (Foucha v Louisiana, 504 US 71, 80 [1992]), and "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection" (id.). A deprivation of liberty occurs, and the protections of the Fourteenth Amendment's Due Process Clause are triggered, by "the State's affirmative act of restraining [an] individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty" (DeShaney v Winnebago County Dept. of Social Servs., 489 US 189, 200 [1989]). Moreover, inmates possess a fundamental right to "freedom from restraint . . . exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force" (Sandin v Conner, 515 US 472, 484 [1995]).

The Federal Constitution does not, however, afford all substantive due process interests the same degree of protection. Substantive due process "provides heightened protection against government interference with certain fundamental rights and liberty interests" (Washington v Glucksberg, 521 US 702, 720 [1997]), namely those rights and interests that are "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed" ({**36 NY3d at 199}Glucksberg, 521 US at 720-721 [internal quotation marks and citations omitted]). The State may not infringe such a "fundamental" liberty interest "unless the infringement is narrowly tailored to serve a compelling state interest" (Reno v Flores, 507 US 292, 301-302 [1993]; see also Glucksberg, 521 US at 721). Yet it is well established that not every intrusion on an individual's liberty constitutes a violation of a fundamental right (see e.g. People v Knox, 12 NY3d 60, 67 [2009], citing Immediato v Rye Neck Sch. Dist., 73 F3d 454, 463 [2d Cir 1996]). If "no fundamental right is infringed legislation [or other government action] is valid if it is rationally related to legitimate government interests" (Knox, 12 NY3d at 67, citing Glucksberg, 521 US at 728, and Hope v Perales, 83 NY2d 563, 577 [1994]).

[2] Johnson's interest in being released to parole, after his open parole date had been announced, did not constitute a fundamental liberty interest. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. . . . [T]he conviction, with all its procedural safeguards, has extinguished that liberty right: Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty" (Greenholtz v Inmates of Neb. Penal & Correctional Complex, 442 US 1, 7 [1979] [internal quotation marks, citation and alterations omitted]). In other words, "[t]he Supreme Court has held . . . that because a person's rightful liberty interest is extinguished upon conviction, there is no inherent constitutional right to parole" (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 73 [1980]).

It is true that in addition to those liberty interests that "arise from the Constitution itself," a liberty interest "may arise from an expectation or interest created by state laws or policies" (Wilkinson v Austin, 545 US 209, 221 [2005]; see also Sandin, 515 US at 483-484 ["States may under certain circumstances create liberty interests . . . protected by the Due Process Clause"]). As this Court has recognized, "when a State adopts a sentencing scheme which creates a legitimate expectation of early release from prison, there then exists a liberty interest deserving of constitutional protection" (Russo, 50 NY2d at 73-74). Rather than a fundamental right, such a liberty interest "is grounded in New York's regulatory scheme" (Victory v Pataki, 814 F3d 47, 60 [2d Cir 2016]) and is a restricted form of liberty, not subject to strict scrutiny.

It is also true that the Constitution affords a confined individual both substantive and procedural due process protection{**36 NY3d at 200} (see DeShaney, 489 US at 200 n 8 ["Of course, the protections of the Due Process Clause, both substantive and procedural, may be triggered when the State . . . subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement"]; see generally Mark G. v Sabol, 93 NY2d 710, 722-726 [1999]). A petitioner may simultaneously assert liberty interests based on procedural and substantive due process protection. To the extent that the constitutional liberty interest resulting from a state-created "legitimate expectation of early release" (Russo, 50 NY2d at 73) exists in the form of procedural due process protections (see id. at 76 n 5), courts will review only "the application of those constitutionally required procedures" (Swarthout v Cooke, 562 US 216, 220 [2011] [emphasis added]). Here, however, Johnson has not preserved any claim that his continued incarceration failed to comply with standards of procedural due process.

The applicable standard of review of Johnson's due process claim is, then, the rational basis test, not strict scrutiny.^[FN8]

[3] Ortiz's appeal introduces a closer question because his case does not involve a claimed right to parole release. Ortiz asserts that his confinement to an RTF in prison-like conditions, after the maximum expiration date of his determinate sentence had passed, violated his fundamental liberty interest. However, like Johnson, Ortiz was subject [*6]to the SARA residency requirement^[FN9] and therefore his assignment to an RTF was based on a mandatory condition of his PRS—a condition that DOCCS can require him to satisfy while he is under its supervision (see generally People v Catu, 4 NY3d 242, 245 [2005]). Moreover, to treat Ortiz's claimed right to release as a fundamental constitutional liberty interest would be self-defeating. The law unquestionably provides that a defendant sentenced to PRS who violates "any condition of supervision . . . at any time during [PRS]" may be reincarcerated ({**36 NY3d at 201}Penal Law § 70.45 [1]). Indeed, "a defendant serving a term of [PRS] for a conviction of a felony sex offense, as defined in [the statute] . . . , may be subject to a further period of imprisonment up to the balance of the remaining period of [PRS]" (id.). Requiring an individual who has not satisfied SARA's housing restrictions to remain in an RTF until SARA-compliant housing is identified does not violate a fundamental liberty interest.

Ortiz relies on decisions that have applied strict scrutiny to review post-incarceration supervision of sex offenders, particularly United States v Myers (426 F3d 117 [2d Cir 2005]), where the United States Court of Appeals for the Second Circuit considered a special condition of supervised release, imposed under federal law, prohibiting the defendant "from spending time alone with his child absent advance authorization from the U.S. Probation Office" (id. at 120). The Second Circuit held that, to satisfy substantive due process, such a restriction on a releasee's liberty "must reflect the heightened constitutional concerns" of strict scrutiny (id. at 126). However, the Myers opinion leaves no doubt that the reason the Second Circuit imposed strict scrutiny was that the interest of parents in "the care, custody, and control of their children" is "perhaps the oldest of the fundamental liberty interests recognized by" the Supreme Court (id. at 125, quoting Troxel v Granville, 530 US 57, 65-66 [2000 plurality, O'Connor, J.]), not that this is the general standard for assessing statutory restrictions imposed on sex offenders who have completed their prison sentences.

Ortiz also cites Francis v Fiacco (942 F3d 126 [2d Cir 2019]), in which the Second Circuit observed that a defendant's "interest in freedom from detention [i]s an interest of the highest order" (id. at 143). Notably, however, the Francis court engaged in a procedural due process analysis, applying Mathews v Eldridge (424 US 319, 335 [1976]).^[FN10] It did not apply strict scrutiny or describe the due process rights as "substantive."

We do not believe that Ortiz's claimed right to be free from continued confinement in the RTF, or to treat the RTF as he would a shelter from which he could depart at his convenience during daylight hours, amounts to a fundamental, deeply rooted due process right. It is equivalent either to a claimed right to be free of PRS conditions or to an alleged right that his PRS conditions may not be equivalent to an extended incarceratory sentence. Neither is a fundamental due process right.{**36 NY3d at 202}

Ortiz's substantive due process claim must therefore be understood as asserting non-fundamental constitutional rights and, as with Johnson's, it is subject to rational basis review, not strict scrutiny.^[FN11]

[4] Our holding as to the standard of review is a significant one because Johnson and Ortiz argue that SARA's residency restrictions serve no vital purpose, so that the challenged confinements cannot be necessary for the achievement of a compelling government purpose and would not pass strict scrutiny review. It is true that the effectiveness of SARA's residence restrictions has been questioned (see 2017 Rep of Advisory Comm on Crim Law and Pro at 29-34).^[FN12] However, we have no occasion to evaluate these policy claims. As we have held, the standard of review in [*7]these appeals is the rational basis test. Therefore, the challenged confinements must be evaluated by means of "the most relaxed and tolerant form of judicial scrutiny" (Myers v Schneiderman, 30 NY3d 1, 15 [2017], quoting Dallas v Stanglin, 490 US 19, 26 [1989]), and the confinements are justifiable if "rationally related to any conceivable legitimate State purpose" (Myers, 30 NY3d at 15, quoting People v Walker, 81 NY2d 661, 668 [1993]). "Indeed, courts may even hypothesize the Legislature's motivation or possible legitimate purpose. At bottom, the rational basis standard of review is a paradigm of judicial restraint." (Myers, 30 NY3d at 15-16 [internal quotation marks, citations, and alterations omitted]; see Affronti v Crosson, 95 NY2d 713, 719 [2001]; Heller v Doe, 509 US 312, 320 [1993].){**36 NY3d at 203}

Applying this undemanding level of judicial review, the temporary confinement of sex offenders in correctional facilities, while on a waiting list for SARA-compliant NYCDHS housing, is rationally related to a conceivable, legitimate government purpose of keeping level three sex offenders more than 1,000 feet away from schools. First, under the rational basis test, we do not evaluate whether the government purpose is a vital or compelling one. Moreover, the challenged detentions were rationally related to the purpose of SARA in that they ensured that petitioners—who, as level three sex offenders, are considered to pose a high risk of recidivism—had no contact with minors while awaiting confirmation of appropriate residence. The existence of less restrictive methods of monitoring petitioners during this period does not invalidate the use of correctional facilities. Confining level three sex offenders who are on a waiting list for SARA-compliant shelter housing is not " 'so unrelated to the achievement of any combination of legitimate purposes' as to be irrational" (Knox, 12 NY3d at 69, quoting Affronti, 95 NY2d at 719).

Ortiz has preserved a separate constitutional claim, based on the constitutional prohibition against "cruel and unusual punishments" in the Eighth Amendment. We conclude that this argument too lacks merit.

"[T]he Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such" (Ingraham v Wright, 430 US 651, 667 [1977] [citations omitted]).

Ortiz focuses on the third element and contends initially that his confinement in an RTF, after the maximum expiration date of his determinate sentence had passed, constituted a cruel and unusual punishment, because it amounted to punishment based on a condition or status that "may be contracted innocently or involuntarily" (Robinson v California, 370 US 660, 667 [1962]). In general, punishments imposed on persons for their status, rather than their conduct, are invalid under the Eighth Amendment. In Robinson, the Supreme Court invalidated{**36 NY3d at 204} a California statute making it a criminal offense for a person to "be addicted to the use of narcotics," regardless of whether the person had used narcotics in California. The law at issue was not one that punished a defendant "for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration" (Robinson, 370 US at 666); it purported to punish addiction itself. The Supreme Court, noting that a law that "made a criminal offense of . . . a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment" (id.), held the California statute to violate the Eighth Amendment.

In addition to Robinson, Ortiz cites a recent decision of the United States Court of Appeals for the Ninth Circuit, Martin v City of Boise (920 F3d 584 [9th Cir 2019]), in which that court held that an ordinance imposing criminal sanctions against homeless people, for sleeping outdoors, on public property, when no alternative shelter is available to them, violates the constitutional prohibition on cruel and unusual punishments. The Ninth Circuit explained "that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being" (Martin, 920 F3d at 616; see generally Powell v Texas, 392 US 514 [1968] [a chronic alcoholic found guilty of intoxication in a public place is properly punished for the act of becoming intoxicated, not the status of being an alcoholic]).

[5] Ortiz contends that he was similarly punished for an unavoidable consequence of his indigent status, namely that he cannot find a SARA-compliant residence in New York City. In short, Ortiz maintains he was punished for being homeless. Assuming, without deciding, that Martin's test is proper, we conclude that Ortiz's confinement in an RTF did not constitute punishment for a "universal and unavoidable consequence[ ]" (Martin, 920 F3d at 617) of his status as an indigent level three sex offender. Instead, it reflects a broader set of social circumstances in which sex offender and society alike prefer that the offender remain in his city of longtime prior residence, especially if he must rely on local social services departments for shelter housing, and not relocate simply because SARA-compliant housing is plentiful elsewhere. Put simply, Ortiz's confinement in an RTF did not constitute status punishment.

Ortiz also argues that his confinement amounted to a cruel and unusual punishment on the ground that his detention beyond{**36 NY3d at 205} the maximum expiration date was the result of deliberate indifference to his liberty interest (see generally Estelle v Gamble, 429 US 97, 104-106 [1976] [deliberate indifference to prisoners' medical needs is proscribed by the Eighth Amendment]). Ortiz asserts that DOCCS did nothing to investigate housing options for him until his maximum expiration date approached. He repeatedly suggests that DOCCS should have simply released him to the NYCDHS shelter system, i.e., should have relied on NYCDHS's obligation, under the 1981 Callahan consent decree, to take in any homeless persons applying for shelter (see generally Callahan v Carey, 12 NY3d 496 [2009]).

For the purpose of this appeal, in which the larger record of cooperation between DOCCS and NYCDHS is not before us, we need only decide whether DOCCS's conduct with respect to Ortiz constituted deliberate indifference as a matter of law.^[FN13] It did not. As we observed in Matter of Gonzalez v Annucci, a sex offender cannot simply "be released to any homeless shelter in New York City" (32 NY3d at 473 n 5). For one thing, the legislature has "imposed a duty on the parole officer to actually supervise the parolee, which requires knowledge . . . that [the {**36 NY3d at 206}parolee's residence] is not in violation of the conditions of release" (id.). Ortiz offers no evidence that DOCCS ever precluded him from accessing a SARA-compliant shelter bed that NYCDHS was willing to make available. Indeed, Ortiz does not dispute that DOCCS released Ortiz to a SARA-compliant shelter as soon as one became available for him.

DOCCS's use of RTFs reflects the extreme difficulties in finding affordable New York City housing that is not within 1,000 feet of a school. New York City's SARA-compliant shelters have a vacancy rate of 0.4%, indicative of the high demand for shelter housing in New York City generally, as well as the considerable number of SARA-subject sex offenders seeking such housing. The challenges faced by DOCCS, when "presented by inmates convicted of sex offenses who must obtain SARA-compliant housing and must do so in a very limited market without financial resources" (Gonzalez, 32 NY3d at 472), are substantial. DOCCS's confinement of Ortiz in an RTF, consistent with statutory authorization, did not constitute deliberate indifference to his plight as a sex offender who is subject to SARA.

Finally, Ortiz raises a statutory argument based on the description of RTFs in the pertinent statutes as "residence[s] for persons who are on community supervision" (Correction Law § 73 [10]). Ortiz's argument is essentially that the legislature, by choosing the word "residence," intended RTFs to be shelter-like, rather than prison-like, correctional facilities, from which residents would be free to depart daily, without supervision, in order to take advantage of local community opportunities for training or employment.

Supporting Ortiz's interpretation is the fact that an RTF is statutorily defined as "[a] correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release" (Correction Law § 2 [6] [emphasis added]). However, we disagree with Ortiz's claims that Correction Law § 73 (10) is a sui generis subdivision that "cannot be read in conjunction with the other sub[divisions] of" Correction Law § 73 and that the legislature intended to convey by means of the single word "residence" that RTFs should be home-like institutions. The legislature did not incorporate such assumptions expressly into{**36 NY3d at 207} the statute, instead allowing DOCCS leeway to design its RTF programs and facilities.

Finally, Queensboro Correctional Facility is itself in close proximity to schools, as Ortiz concedes. As a practical matter, it would have defeated SARA's purposes to let Ortiz "come and go" as he pleased from the RTF in which he was placed.

We have considered petitioners' remaining contentions and we conclude that they too lack merit. The appeals before us present troubling issues concerning the fairness and effectiveness of the methods chosen by the legislature for deterring sex offender recidivism. These are important public policy issues that may require legislative attention.

Accordingly, in each appeal, the order of the Appellate Division should be modified, without costs, by converting the proceeding into a declaratory judgment action and granting judgment in accordance with this opinion and, as so modified, affirmed.

Rivera, J. (dissenting).

These appeals concern constitutional challenges to the potentially indefinite confinement of level three sex offenders—regardless of the fact that they have been granted parole or have completed their terms of imprisonment and are serving the postrelease supervision (PRS) portion of their sentences—solely because they are unable to afford housing more than 1,000 feet away from school property and because the Department of Corrections and Community Supervision (DOCCS) refuses them the opportunity to exercise their right to request placement in a New York City [*10]homeless shelter. The resolution of these claims turns on the correct classification of the challenged state action and the appropriate level of constitutional scrutiny.

The State has allowed this indefinite incarceration solely to reduce the administrative burden on New York City's homeless shelter system. Because that policy does not serve a correctional purpose, the State's interest is at its lowest ebb. On the other side of the scale, the liberty interests at issue derive from a constellation of state and city statutory and regulatory schemes intended to foster reentry into the community and prevent recidivism and, in certain cases, implicate indisputably fundamental rights. Therefore, heightened intermediate judicial review applies and, under the circumstances here, DOCCS' actions plainly fail that standard. Even assuming, as the majority does, that DOCCS' policy is subject only to rational{**36 NY3d at 208} basis review, we must still consider whether the policy serves a legitimate purpose. It is far from clear that DOCCS' chosen course of action meets that relatively relaxed standard. Therefore, I would declare DOCCS' policy unconstitutional as applied.^[FN1]

Petitioner Fred Johnson was serving an indeterminate term of 2 years to life following his conviction of persistent sexual abuse. After more than eight years of incarceration, the New York State Board of Parole granted Johnson an open parole date. In so doing, the Board necessarily found that there was a reasonable probability that he would "live and remain at liberty without violating the law" and that his release would not be "incompatible with the welfare of society" (Executive Law § 259-i [2] [c] [A]). As a level three sex offender serving a sentence for an enumerated offense, Johnson was subject to the restriction mandated by Executive Law § 259-c (14) (Sexual Assault Reform Act [SARA]), which prohibits him from entering within 1,000 feet of school property.

DOCCS rejected Johnson's proposal that he reside with his twin brother in South Carolina. Johnson is indigent and was thus unable to identify alternative affordable housing that complied with SARA in New York City, the community in which he lived before his incarceration. Therefore, he requested to seek shelter through New York City's Department of Homeless Services (DHS). Instead of allowing Johnson to present himself at DHS for shelter placement, as in the case of other homeless New Yorkers, Johnson was placed on a DOCCS waiting list for an available bed in a SARA-compliant shelter in the City. Solely due to this SARA incarceration policy,^[FN2] Johnson remained in a facility for an additional 27 months after his open parole date while he awaited a space at a shelter.{**36 NY3d at 209}

With no release date in sight, Johnson filed a petition for a writ of habeas corpus. Challenging his incarceration on substantive due process grounds, he argued that DOCCS' application of SARA to keep him in prison violated his fundamental right to be free from confinement. Johnson also argued that because he had never victimized a child, SARA—which is intended to protect children from sex offenders—was irrational as applied to him.

Petitioner Angel Ortiz was sentenced to a determinate term of 10 years' incarceration and five years' PRS following his conviction of robbery and attempted sexual abuse. After earning good time credits and serving the majority of his determinate sentence, the State certified Ortiz as ready for release and assigned him a conditional release date. Ortiz, like Johnson, was adjudicated a level three sex offender serving a sentence for an enumerated offense and thus subject to SARA's restriction that he not enter within 1,000 feet of school property. According to the record, Ortiz is amenable to release in upstate locations but repeatedly expressed a strong desire to be released in New York City, where his mother and daughter live. He described his mother as "[his] rock," and explained that his daughter "was [his] drive in order for [him] to change" following his incarceration. Nonetheless, DOCCS determined he could not live with his mother because her address is not SARA-compliant. Because he is indigent, Ortiz is unable [*11]to obtain SARA-compliant housing and so he remained in prison after his conditional release date while waiting for an appropriate New York City shelter bed. Upon the maximum expiration date of the carceral portion of his sentence, DOCCS confined Ortiz in a residential treatment facility (RTF) and prohibited any visits with his daughter. DOCCS ultimately released Ortiz to a SARA-compliant shelter approximately 25 months after his conditional release date and eight months after the end of his determinate prison sentence.

While incarcerated at the RTF, Ortiz filed a petition for a writ of habeas corpus. Like Johnson, Ortiz argued that DOCCS violated his substantive due process rights by confining him during the PRS portion of his sentence in a manner indistinguishable{**36 NY3d at 210} from his imprisonment during his determinate sentence. Ortiz also argued that his potentially indefinite confinement constituted cruel and unusual punishment in violation of the Eighth Amendment, imposed on him solely because he is indigent and therefore reliant on the DHS shelter system. He also argued that he should at least be treated as a resident while held in the RTF, with the entry and exit privileges that would be available to him were he living in the community.

Petitioners mount an as-applied constitutional challenge, arguing that they have a fundamental right to be free from state confinement after their respective release dates and that DOCCS violates that right by confining them solely because they are indigent and unable to afford SARA-compliant housing in their New York City communities. According to petitioners, DOCCS' policy cannot survive strict scrutiny, the highest and most demanding standard of review, because they may be released for initial placement in a DHS homeless shelter until they can find affordable SARA-compliant housing. Alternatively, petitioners argued the policy fails even intermediate scrutiny.

The State responds that petitioners have no fundamental right to conditional release, which is neither a constitutional right nor grounded in the nation's history. Therefore, petitioners' continued incarceration is lawful because DOCCS has a rational basis for confining them pending the availability of a SARA-compliant residence, including a shelter bed in New York City.

The petitioners are correct to the extent that, generally, the right to be free from state confinement is fundamental and constitutionally protected against unlawful deprivation (see DeShaney v Winnebago County Dept. of Social Servs., 489 US 189, 200 [1989] ["(I)t is the State's affirmative act of restraining the individual's freedom to act on his own behalf . . . which is the 'deprivation of liberty' triggering the protections of the Due Process Clause"]). However, petitioners' liberty interests {**36 NY3d at 211}were extinguished during the period of their lawfully imposed prison sentences (see Greenholtz v Inmates of Neb. Penal & Correctional Complex, 442 US 1, 7 [1979] ["(T)he conviction, with all its procedural safeguards, has extinguished that liberty right: Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty" (internal quotation marks, alteration and citation omitted)]; but see McNeil v Director, Patuxent Institution, 407 US 245, 246 [1972] [agreeing that "when (an inmate's) sentence expired, the State lost its power to hold him, and that his continued detention violates his rights under the Fourteenth Amendment"]; Calhoun v New York State Div. of Parole Officers, 999 F2d 647, 653 [2d Cir 1993] ["Under both the due-process clause and state law, an inmate has a liberty interest in being released upon the expiration of his maximum term of imprisonment"]). Additionally, petitioners' sole support for their argument that they possess a fundamental right to be released from confinement is derived from case law addressing the metes and bounds of procedural due process, rather than the jurisprudence governing substantive rights under the Due Process Clause (see majority op at 199). Petitioners make no claim that during their SARA confinement they have been deprived of procedural safeguards against unlawful state action.

For the majority, this ends the inquiry—not just as to the proper standard of review but, more importantly, as to the nature of the asserted right as well. The majority's equation is simple: Because no fundamental right is implicated by the State's confinement of Johnson beyond his open parole date or of Ortiz beyond his maximum incarceration date, the State need only articulate a rational basis for their continued incarceration, a requirement easily met here. But that conclusion turns rational basis review into a perfunctory rubber stamp—rendering outcome determinative the choice of standard rather than its application. Rational basis requires that the state action be logical, reasonable, and sensible, even if only minimally so. Put another way, the State cannot take action that is groundless, counterfactual, or unjust.

Moreover, the majority's analysis disregards this Court's long history of applying heightened constitutional scrutiny under circumstances like the ones presented in these appeals,{**36 NY3d at 212} where the Court is called upon to balance meaningful individual rights (which themselves implicate fundamental rights) against a state policy that contravenes [*12]the free exercise of those rights. More so here, where the individual interests align with legislation enacted to achieve the salutary goals of reentry and reduced recidivism.

Indeed, the majority acknowledges that our case law recognizes a liberty interest in New York's regulatory scheme which by design creates "a legitimate expectation of early release from prison" (majority op at 199). The majority rejects in a footnote, however, petitioners' claims that these rights subject DOCCS' policy to at least intermediate review, because, according to the majority, the issue is insufficiently complex to warrant more than de minimis scrutiny (id. at 200 n 8).^[FN3] This misreads our case law, which applies intermediate scrutiny when there is a need to "provide rigorous protection of constitutional rights" while also "accommodat[ing]" the State's need to craft legislation to effectuate its legitimate interests (Anonymous v City of Rochester, 13 NY3d 35, 47 [2009]).

That standard is appropriate here, where the State has enacted a statutory and regulatory scheme intended to reduce recidivism and to promote public safety by assisting the formerly incarcerated with their reentry into society, including those released subject to conditions. Those same state provisions are balanced against DOCCS' SARA-incarceration policy. Thus, the question before us is whether this interconnected statutory and regulatory scheme is hindered by DOCCS, making its policy an irrational choice to achieve the legislature's reentry goals.

Given record evidence that SARA's 1,000-foot school property rule fails to achieve the legislature's express purpose in enacting it, DOCCS' decision to confine these petitioners may not be rational, but it most certainly cannot survive intermediate scrutiny.{**36 NY3d at 213}

For example, Johnson was granted an open parole date pursuant to a complex statutory and regulatory scheme, all intended to further the successful reentry of an individual deemed ready to return to the community. First, the Penal Law provides that "[r]elease on parole shall be in the discretion of the state board of parole, and such person shall continue service of [their] sentence or sentences while on parole, in accordance with and subject to the provisions of the executive law and the correction law" (Penal Law § 70.40 [1] [a]). The Executive Law, in turn, provides that,

"at least one month prior to the date on which an inmate may be paroled pursuant to subdivision one of section 70.40 of the penal law, a member or members as determined by the rules of the board shall personally interview such inmate and determine whether [they] should be paroled in accordance with the guidelines adopted pursuant to [section 259-c (4)]" (Executive Law § 259-i [2] [a] [i]; see also § 259-c [4] [directing the Board to develop written procedures for making parole decisions that "incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist . . . in determining which inmates may be released to parole supervision"]).

Additionally, the Executive Law governs the specific criteria which the Board may consider when granting or denying parole:

"Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, [they] will live and{**36 NY3d at 214} remain at liberty without violating the law, and that [their] release is not incompatible with the welfare of society and will not so deprecate the seriousness of [their] crime as to [*13]undermine respect for law" (Executive Law § 259-i [2] [c] [A]; see also id. [elaborating on the list of factors the Board must consider including, among others, work and educational history while incarcerated, interaction with prison staff and inmates, and release plans]).

In other words, parole is to be granted only after the Board has determined that the individual will "live and remain at liberty without violating the law" and that their release will not put at risk the well-being of the community.

As for Ortiz, he first sought to be conditionally released after he accumulated a time allowance for good behavior, to be credited against the remaining portion of his sentence, pursuant to Correction Law § 803. That provision states:

"Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or determinate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of [their] sentence imposed by the court. Such allowances may be granted for good behavior and efficient and willing performance of duties assigned or progress and achievement in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned" (Correction Law § 803 [1] [a]).

When Ortiz's accrued good behavior time allowances equaled the amount of time remaining on the carceral portion of his sentence, he was entitled to conditional release under Penal Law § 70.40:

"A person who is serving one or more than one indeterminate or determinate sentence of imprisonment shall, if [they] so request[ ], be conditionally released from the institution in which [they are] confined when the total good behavior time allowed to [them], pursuant to the provisions of the correction law, is equal to the unserved portion of [their]{**36 NY3d at 215} term, maximum term or aggregate maximum term . . . ." (Penal Law § 70.40 [1] [b] [emphasis added].)

Once Ortiz reached the end of the carceral portion of his sentence, he commenced serving the PRS portion. PRS is governed by Penal Law § 70.45, which provides:

"When a court imposes a determinate sentence it shall in each case state not only the term of imprisonment, but also an additional period of post-release supervision as determined pursuant to this article. Such period shall commence as provided in subdivision five of this section and a violation of any condition of supervision occurring at any time during such period of post-release supervision shall subject the defendant to a further period of imprisonment up to the balance of the remaining period of post-release supervision, not to exceed five years" (Penal Law § 70.45 [1]).

The purpose of PRS is, generally, to provide for the monitoring of certain individuals upon their reintroduction to society (see People v Sparber, 10 NY3d 457, 469 [2008]), and to assure that that reintroduction is successful (see Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 70.45 at 396 [2004 ed]).

Moreover, New York State and City have enacted policies that evince a legislative goal of ensuring the successful transition from incarceration into the community. For instance, New York State prohibits discrimination in hiring and professional licensing solely on account of an individual's criminal conviction (see e.g. Correction Law § 752 ["No application for any license or employment . . . shall be denied . . . by reason of the individual's having been previously convicted"]; Executive Law § 296 [15], [16]; see also Matter of Dempsey v New York City Dept. of Educ., 25 NY3d 291, 298 [2015] ["Article 23-A of the Correction Law protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination"]; Matter of Gonzalez v Annucci, 32 NY3d 461, 480 [2018, Wilson, J., dissenting] ["In all respects, the statutory scheme is one that seeks systematically to remove from the willing inmate the disabilities of past crimes and imprisonment"]). New York City's "Fair Chance Act" similarly demonstrates the City's goal of ensuring the successful integration of formerly incarcerated persons into the [*14]community (see Fair Chance Act, Local Law No. 63 [2015] of City of NY; see{**36 NY3d at 216} also NY City Commission on Human Rights, Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 [2015] at 1 [May 24, 2019] ["The (Fair Chance Act) reflects the City's view that job seekers must be judged on their merits before their mistakes . . . (and) is intended to level the playing field . . . (for) New Yorkers who are part of the approximately 70 million adults residing in the United States who have been arrested or convicted of a crime"]).

Affordable housing is critical to reintegration, as it promotes stability and a sense of community that encourages law-abiding behavior (see New York State Council on Community Re-entry and Reintegration, The Reentry Council, https://www.governor.ny.gov/criminal-justice-reform/new-york-state-council-community-re-entry-and-reintegration [last accessed Nov. 4, 2020] ["Individuals with criminal convictions continue to face significant economic and social barriers to their successful reintegration into society. On average, New York State releases more than 25,000 people from prison each year and research shows that without successful re-entry policies, there is a higher rate of re-convictions"]; see also 18 NYCRR 352.36 [a] [3] [describing "the importance of stable housing and support in allowing offenders to live in and re-enter the community and become law-abiding and productive citizens"]).

Significantly, New York City has recognized that indigent individuals, like Johnson and Ortiz, have a legally enforceable right to shelter. For nearly four decades, the City has, pursuant to a consent decree, guaranteed that homeless individuals who present themselves for intake at a city shelter will be provided with a bed. The consent decree requires the City to "provide shelter and board to each homeless man who applies for it provided that (a) the man meets the need standard to qualify for the home relief program established in New York State; or (b) the man by reason of physical, mental or social dysfunction is in need of temporary shelter" (final judgment by consent ¶ 1 in Callahan v Carey, Sup Ct, NY County, 1981, index No. 42582/79; see also Gonzalez, 32 NY3d at 489 ["(H)ad DOCCS released (the petitioner) to any homeless shelter in New York City, the City would have been required to find him a bed, because the City guarantees (and indeed must guarantee) housing for every homeless person who requests it"]). The right has been extended to women and families (Eldredge v Koch, 98 AD2d 675 [1st Dept 1983]; McCain v Koch, 117 AD2d 198, 222 [1st Dept 1986], revd in part 70 NY2d 109 [1987]).{**36 NY3d at 217}

The City publicly acknowledges that its approach to homelessness is "[g]overned by a unique . . . mandate" to provide shelter-on-demand "to every man, woman, and child who is eligible for services, every night" (New York City Department of Homeless Services, Shelter, https://www1.nyc.gov/site/dhs/shelter/shelter.page [last accessed Nov. 4, 2020]). The City proudly proclaims that its "policy sets New York part from municipalities across the nation—many of which turn homeless individuals and families away once shelters have filled up or simply put their names on a waiting list" (id.). New York City's shelter system is consistently recognized as the most sophisticated and comprehensive in the nation.

As part of "providing shelter as a safety net for those in need" (id.), the City has adopted a regulatory framework that governs temporary housing assistance for homeless individuals and families, including assessment and case management, access to health care, and assistance with finding permanent housing (see 18 NYCRR 491.14 [a] [requiring that shelter operators "shall be responsible for the development and provision of resident services that shall include, at a minimum, room, board, health services, social rehabilitation services, supervision, and information and referral"]).

Moreover, the State has recognized its affirmative obligation to assist sex offenders in finding housing once released and, critically, that this obligation promotes postrelease stability and reduces recidivism (see 18 NYCRR 352.36 [a] [3] ["The State's coordinated and comprehensive approach also recognizes the necessity to provide emergency shelter to individuals in need, including those who are sex offenders, and the importance of stable housing and support in allowing offenders to live in and re-enter the community and become law-abiding and productive citizens"]; id. § 352.36 [b] [describing procedures local social services departments are to follow in providing housing for released level three sex offender]; see also Gonzalez, 32 NY3d at 474 [requiring DOCCS "to assist inmates prior to release and under supervision to secure housing"]).

On the other hand, DOCCS' asserted interest is in the enforcement of SARA, which provides:

"[W]here a person serving a sentence for an [enumerated] 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{**36 NY3d at 218} level three sex offender . . . , is released on parole or conditionally released . . . , 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" (Executive Law § 259-c [14]).

In enacting SARA, the "legislature was clearly concerned with the release of the sex offender back into a community," and "the point" of the legislation was "keeping sex offenders . . . 1,000 feet from children in school areas" (Gonzalez, 32 NY3d at 473 n 5; see also Matter of Williams v Department of Corr. & Community Supervision, 136 AD3d 147, 154 [1st Dept 2016] ["(T)he legislative intent (of SARA was) to protect children"]). However, SARA's text and purpose fail to evince a legislative intent to continue the incarceration and delay the release of indigent offenders, potentially indefinitely, by preventing them from requesting SARA-compliant shelter at DHS intake.

The rational basis test is a lenient one. However, "while rational basis review is indulgent and respectful, it is not meant to be 'toothless' " (Windsor v United States, 699 F3d 169, 180 [2d Cir 2012], affd 570 US 744 [2013]; see also Winston v City of Syracuse, 887 F3d 553, 560 [2d Cir 2018] ["Rational basis review, however, does require some scrutiny of . . . government activity"]). Nor can government action survive rational basis review if its justification is "flimsy or implausible" (Railroad Retirement Bd. v Fritz, 449 US 166, 184 [1980]). Instead, the challenged action must "rationally further a legitimate state interest" (Affronti v Crosson, 95 NY2d 713, 718 [2001]).

Here, the asserted government interest in preventing the sexual victimization of children is plainly legitimate. However, DOCCS' chosen means for effectuating that interest are of dubious rationality.^[FN4] Courts and scholars alike have recognized that residency restrictions do next to nothing to prevent children{**36 NY3d at 219} from being victims of sex crimes (see Does #1-5 v Snyder, 834 F3d 696, 705 [6th Cir 2016] [striking down Michigan's sex offender residency requirement in part because there was no evidence "that the residential restrictions have any beneficial effect on recidivism rates"]; Jill S. Levenson & Andrea L. Hern, Sex Offender Residence Restrictions: Unintended Consequences and Community Reentry, 9 Just Res & Pol'y [No. 1] 59, 61 [June 2007] [study in Minnesota tracking recidivism rates for people designated high-risk sex offenders found that, of the 4% who committed new sex crimes "(n)one of the new crimes occurred on the grounds of a school or was seemingly related to a sex offender's living within close proximity to a school" and concluding that "residential proximity to schools and parks appeared to be unrelated to sex offense recidivism" and that "blanket policies restricting where sex offenders can live are unlikely to benefit community safety"]). Perhaps most damning is the Federal Department of Justice's acknowledgement that residency restrictions appear ineffectual and may actually increase recidivism: "[T]here is no empirical support for the effectiveness of residence restrictions. In fact, a number of negative unintended consequences have been empirically identified . . . that may aggravate rather than mitigate offender risk" (Christopher Lobanov-Rostovsky, Chapter 8: Sex Offender Management Strategies, in U.S. Department of Justice, Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, Sex Offender Management Assessment and Planning Initiative at 205 [NCJ 247059, Oct. 2014], available at https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/somapi_full_report.pdf [last accessed Nov. 3, 2020]; U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics at 10 [NCJ 182990, July 2000] [noting that in 93% of sex crimes involving children, the perpetrator was someone known to the victim rather than a stranger]). Further highlighting the lack of correlation between the legislative ends and DOCCS' policy of SARA incarceration is DOCCS' failure to contest petitioners' claim that, between 2005 and 2014 (when DOCCS permitted level three sex offenders to reside in non-compliant homeless{**36 NY3d at 220} shelters), there was not a single reported sex offense involving a child perpetrated by a stranger living in a homeless shelter less than 1,000 feet from a school.

Assuming, for a moment, that the foregoing evidence did not strongly suggest the irrationality of DOCCS' chosen course of action, there is no rational justification for the application of this policy to Johnson. The record makes clear that he has never victimized a minor nor committed a crime near a school. Johnson committed his crimes on New York City's subways, against adult females. The State struggles to explain how SARA's restriction could possibly reduce the risk that Johnson would reoffend, given the particulars of his criminal history. It ultimately suggests that Johnson may pivot, altering his modus operandi and suddenly begin victimizing minors, not on the [*16]subway but within 1,000 feet of school property. This rank speculation is the kind of "flimsy or implausible justification[ ]" that fails even the rational basis test (Fritz, 449 US at 184).

As to both Ortiz and Johnson, DOCCS' SARA incarceration irrationally thwarts the New York State and City Legislatures' goals of fostering the successful reintegration of formerly incarcerated individuals into the community (see e.g. Sparber, 10 NY3d at 469; Gonzalez, 32 NY3d at 480 [Wilson, J., dissenting] ["In all respects, the statutory scheme is one that seeks systematically to remove from the willing inmate the disabilities of past crimes and imprisonment"]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 70.45 at 396 [2004 ed] [quoting legislative memorandum which states that PRS is meant to provide "assurance that offenders will be successfully reintegrated into society"]; NY City Commission on Human Rights, Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 [2015] at 1 [May 24, 2009] ["The (Fair Chance Act) reflects the City's view that job seekers must be judged on their merits before their mistakes . . . [and] is intended to level the playing field"]). The irrationality of DOCCS' choice is made plain by its violation of its own policy. As the State concedes, when individuals subject to SARA finally make it off DOCCS' internal waiting list for SARA-compliant housing, DOCCS transports them to the Bellevue Men's Shelter in Manhattan—even though that shelter is within 1,000 feet of a school. And, finally, DOCCS' insistence that the policy is not merely rational but also necessary is belied by the fact that SARA's restriction is finite in duration; it is only mandatory during an offender's sentence.{**36 NY3d at 221}

Thus, DOCCS' chosen means of effectuating the State's legitimate interest in protecting children beggars all rationality. Not only is it unsupported by the scientific literature, but DOCCS' historical practice—where, for nine years, it did the very thing it claims it now cannot do without jeopardizing the well-being of children—lends it no support. So irrational is DOCCS' policy of continuing an offender's confinement while simultaneously prohibiting them from exercising the right to request shelter directly from DHS, that the agency repeatedly ignores its own dictates when it eventually releases level three offenders (after, potentially, years of confinement) to the Bellevue shelter. All this, too, at the expense of legislative goals meant to facilitate the reintroduction of individuals on conditional release back to their home communities.

Regardless of whether DOCCS' SARA incarceration of indigent individuals who are reliant on shelter housing—and their resulting, potentially indefinite, confinement—survives rational basis review, the question remains whether it survives heightened intermediate scrutiny. Under our precedent's reasoning, the policy falls short of that threshold and is therefore unconstitutional.

This Court has regularly applied intermediate scrutiny when the question presented implicates both a constitutional right and a concededly legitimate state action. For instance, First Amendment challenges to local zoning laws that burden expressive activity trigger intermediate scrutiny (see e.g. Town of Delaware v Leifer, 34 NY3d 234, 244 [2019]; For the People Theatres of N.Y., Inc. v City of New York, 29 NY3d 340, 358 [2017]; see also Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 147 AD3d 1427, 1431 [4th Dept 2017] [restrictions on commercial speech trigger intermediate scrutiny]). Similarly, Second Amendment challenges to certain firearm-related state laws warrant intermediate scrutiny (see People v Hughes, 22 NY3d 44, 51 [2013]; see also Matter of Delgado v Kelly, 127 AD3d 644, 644 [1st Dept 2015]).^[FN5]

Most relevant to these appeals is Cooper v Morin (49 NY2d 69 [1979]), which resolved a constitutional challenge to pretrial{**36 NY3d at 222} confinement at the Monroe County jail. The plaintiffs, a class of female detainees, alleged that correctional officials violated their state and federal constitutional rights by prohibiting any contact with visitors during jail visits. The Court acknowledged the holding of Bell v Wolfish (441 US 520 [1979]) which rejected "an intrusive standard of review" applicable to due process claims of pretrial detainees regarding the conditions of their confinement (see e.g. Cooper, 49 NY2d at 76-77 [describing Bell's application of rational basis and surveying additional United States Supreme Court precedent applying the same standard to pretrial detainees' constitutional challenges]). Applying that precedent, the Court held that "neither as a matter of Federal due process nor Federal equal protection are plaintiffs entitled to an order requiring the allowance of contact visits" (id. at 78).

However, "[t]hat conclusion d[id] not end the inquiry," because plaintiffs asserted state constitutional claims (id.). Those claims prevailed. The Court explained that it

"c[ould] not agree that the validity of the regimen imposed upon such persons during detention turns on no more than whether a regulation has a legitimate purpose other than punishment and is not excessive in relation to that purpose. So one-sided a concept of due process we regard as unacceptable. In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement" (id. at 79).

Central to the analysis in Cooper was the fact that the no-contact policy severely impinged upon the plaintiffs' "fundamental right to . . . family life on the one hand and to . . . rear children on the other" (id. at 80). In other words, heightened review applied because the governmental action at issue in Cooper impinged upon the plaintiffs' constitutionally protected rights, even though the plaintiffs, like petitioners here, were lawfully in state custody.

That the State was permitted, after arresting and charging the plaintiffs with crimes, to detain them to ensure their appearance{**36 NY3d at 223} at trial did not mean that any rational restriction on their constitutionally protected rights was also permitted. The majority rejected the dissent's view that plaintiffs had no constitutionally protected rights because "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by our penal system . . . [and] there are certain personal freedoms and conveniences that must be sacrificed as a necessary incident to the loss of liberty" (id. at 84-85 [Gabrielli, J., dissenting] [alterations omitted]). The dissent argued, similarly to the State here, that any fundamental rights must give way to a compelling governmental interest, particularly in light of "the relatively short duration of [the individual's] confinement" (id. at 85).

Instead of adopting this narrow view of our state due process protections, the Court examined the constitutional interests implicated by the challenged state action and weighed them against the interests asserted by the State. The Cooper Court made clear that the right it sought to protect through heightened review was broader than just the right to parent; instead, it encompassed the right to be in the community generally—a fundamental right that was not rendered wholly meaningless by virtue of the right-holder's detention (see 49 NY2d at 81 ["(W)hen so fundamental a right as the maintenance by pretrial detainees of relationships with family and friends is involved the measure adopted must be both reasonable and necessary to the maintenance of security" (emphasis added)]).

The reasoning of Cooper applies with equal force to petitioners here. As an initial matter, the same fundamental right at issue in Cooper is clearly implicated in the case of Ortiz, whose desire to maintain his relationship with his young daughter was central to his decision to seek release on PRS in New York City (as the record repeatedly makes clear). DOCCS' refusal to release Ortiz absent a SARA-compliant address and its denial of his request to directly seek shelter in the city, therefore, thwarted his attempts to vindicate his long-recognized fundamental right to parent (see People ex rel. Portnoy v Strasser, 303 NY 539, 542 [1952] ["(T)he right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court"]).

Here, the importance of the right to be in the community and to "maint[ain] . . . relationships with family and friends" (49 NY2d at 81) is, arguably, even greater for individuals on PRS who, by virtue of DOCCS' SARA incarceration, remained{**36 NY3d at 224} confined in a correctional facility euphemistically labeled an RTF—despite the fact that this portion of their sentence is supposed to be served at liberty in the community. "Postrelease supervision is significant" (People v Catu, 4 NY3d 242, 245 [2005]), and DOCCS' abridgement of it—particularly when that action simultaneously works harm on fundamental rights—must be subjected to something more searching than mere rational basis.

To be sure, the Constitution permits the State to infringe upon the rights of someone serving a sentence upon a lawful conviction, and an individual's right to "conditional liberty [is] properly dependent on observance of special parole restrictions" (Morrissey v Brewer, 408 US 471, 480 [1972]). Nonetheless, the liberty interests of individuals [*17]who are presently incarcerated still merit constitutional protection. This is particularly true for individuals, like petitioners, who have either been granted an open parole date or who are currently serving the PRS portions of their sentences (see id. at 482 [liberty interest of a parolee, in the context of a revocation hearing, "includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee . . . . By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment"]).

The majority relies heavily on the lack of any right to parole to reach its conclusion that there is no constitutional right—fundamental or otherwise—meriting heightened judicial review (majority op at 199-200). This parsimonious view of individual liberty ignores that once a person is granted parole or exceeds the maximum expiration date of the carceral portion of their sentence, they possess far "more than a hope or a unilateral expectation of release" (Green v McCall, 822 F2d 284, 288 [2d Cir 1987]). "[I]nstead, [they] have a legitimate claim of entitlement to it" (Greenholtz v Inmates of Neb. Penal and Correctional Complex, 442 US 1, 7 [1979]). In turn, once such individuals have a "legitimate claim of entitlement," the Constitution protects that liberty interest (see Victory v Pataki, 814 F3d 47, 59-60 [2016] ["(A) New York inmate who has been granted an open parole release date has a legitimate expectancy of release that is grounded in New York's regulatory scheme . . . (and) has a protectable liberty interest that entitles (them) to due process" (internal quotation marks omitted)]).

While that interest may not rise to the level of a fundamental right, it is nonetheless constitutionally meaningful because it{**36 NY3d at 225} derives from "a legitimate expectancy of release that is grounded in the state's statutory scheme" (id. at 60, quoting Graziano v Pataki, 689 F3d 110, 114 [2012]). That is all the more true here, where the statutory scheme reflects a clear legislative intent in favor of reentry (see e.g. People v Sparber, 10 NY3d 457, 469 [2008] [purpose of PRS is to monitor certain incarcerated individuals "upon their reintroduction into society" (emphasis added)]; see also Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 70.45 at 396 [2004 ed] [quoting legislative memorandum which states that PRS is meant to provide "assurance that offenders will be successfully reintegrated into society"]).

Likewise, New York City's status as a "right to shelter" jurisdiction bolsters the petitioners' legitimate expectation of release and their concomitant liberty interests. Under a 1981 consent decree entered in Callahan v Carey (Sup Ct, NY County, 1981, index No. 42582/79), New York City agreed that it would "provide shelter and board to each homeless man who applies for it" (Callahan v Carey, 307 AD2d 150, 151 [2003] [quoting consent decree]). The Callahan consent decree does not have a sex offender exception, and its plain language requires DHS to provide SARA-compliant housing to individuals like petitioners—assuming, of course, DOCCS did not prohibit them from presenting themselves for intake (see also Callahan v Carey, 12 NY3d 496, 498 [2009] [requiring the City to "provide shelter and board to each homeless man who applies for it provided that . . . the man by reason of . . . social dysfunction is in need of temporary shelter"]). Indeed, DHS officials appear to have confirmed this understanding of the consent decree in litigation raising issues similar to those presented in the instant appeals (see People ex rel. Bonilla v Superintendent, Fishkill Corr. Facility, Sup Ct, Dutchess County, June 25, 2020, index No. 2020-51174). Supreme Court credited a DHS official's testimony that individuals subject to SARA would be provided compliant beds so long as they presented themselves to DHS shelter intake (see Gonzalez, 32 NY3d at 489-490 [Wilson, J., dissenting] ["(H)ad DOCCS released (the petitioner) to any homeless shelter in New York City, the City would have been required to find him a bed, because the City guarantees (and indeed must guarantee) housing for every homeless person who requests it"]; Wilson, J., dissenting op at 230-232, 244-246 [demonstrating the breadth of the City's obligation to provide homeless individuals like petitioners with housing upon{**36 NY3d at 226} request]). Thus, in addition to New York State's reentry-promoting conditional release scheme, New York City's provision of shelter to indigent individuals further strengthens petitioners' liberty interest in and their expectation of unobstructed release on parole and PRS to a New York City shelter.

That New York City, as opposed to some other jurisdiction, guarantees a right to shelter is noteworthy for another reason. Although petitioners expressed some openness to living outside of the City, nothing in the record suggests that, as homeless individuals, they would be able to obtain shelter upon request in another part of the State. Moreover, the petitioners' historical connection to and preference for residing in New York City may reflect government policies resulting in pervasive racial segregation in housing that afflicts New York State generally. In upstate New York (where SARA-compliant housing is not in such high demand), for example, more than 80% of residents are non-Hispanic whites (see Nancy Denton et al., Metropolitan and Micropolitan New York State: Population Change and Race-Ethnic Diversity 2000-2010, How the Other Third Lives: A Focus on Upstate New York, http://mumford.albany.edu/mumford/UpstateProject/geography.html). And people of color are concentrated in [*18]neighborhoods with the highest poverty rates, adding to the challenges of reentry (see e.g. Paul Jargowsky, Architecture of Segregation: Civil Unrest, the Concentration of Poverty, and Public Policy, The Century Foundation [Aug. 7, 2015], https://tcf.org/content/report/architecture-of-segregation/?agreed=1 [Syracuse, New York has the highest concentrations of African-American and Hispanic poverty in the nation]).

The significant interests at issue in these appeals, grounded in statutory and regulatory schemes aimed at promoting an individual's reentry into the community, reducing recidivism, and ensuring that they have shelter if they are homeless, demand more scrutiny than mere rational basis review. This is particularly so when the State's infringement of that interest implicates rights that are unquestionably fundamental, such as the right to "the maintenance . . . of relationships with family" (Cooper, 49 NY2d at 81). Nothing less than intermediate scrutiny serves to protect those rights. Anonymous v City of Rochester (13 NY3d 35, 48 [2009]) supports this conclusion.

In Anonymous, the Court considered the appropriate constitutional standard of review for a curfew that restricted minors' freedom of movement. The Court determined that, for adults,{**36 NY3d at 227} such freedom of movement would undeniably constitute a fundamental right warranting strict scrutiny. But, because of the sensitive considerations applicable to minors, a slightly more lenient form of review (i.e., intermediate scrutiny) should apply. (13 NY3d at 45-47). Specifically, the Court held that, notwithstanding the fundamentality of the right to freedom of movement, courts had long recognized the State's "entitle[ment] to adjust its legal system" when dealing with minors "by exercising broader authority over their activities" (id. at 46, quoting Bellotti v Baird, 443 US 622, 635 [1979]). As the petitioners argued before this Court, the relationship between an adult's and a minor's freedom of movement is clearly analogous to the relationship between the constitutional right to be free from confinement possessed by those at liberty and those who are incarcerated. That is, an individual who is at liberty has a constitutional right to remain at liberty that merits the protection of the Due Process Clause, even if subject to some additional constraints (see DeShaney, 489 US at 200 ["(I)t is the State's affirmative act of restraining the individual's freedom to act on (their) own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the 'deprivation of liberty' triggering the protections of the Due Process Clause"]).

Intermediate scrutiny is "sufficiently skeptical and probing to provide rigorous protection of constitutional rights yet flexible enough to accommodate legislation that is carefully drafted to address" particularly sensitive cases (Anonymous, 13 NY3d at 47). Indeed, it is precisely for this reason that New York courts have routinely found it appropriate when considering the extent to which the State may, in service of certain important state functions, constitutionally impinge upon liberties enshrined in the Constitution (see e.g. Town of Delaware, 34 NY3d at 244 [applying intermediate scrutiny when balancing First Amendment rights against municipal zoning needs]; Hughes, 22 NY3d at 51 [applying intermediate scrutiny when balancing Second Amendment rights against state criminal law prohibiting certain possessions of firearms]; Alevy, 39 NY2d at 335-336 [applying intermediate scrutiny balancing equal protection concerns about disparate treatment based on race with the need to compose a racially diverse class of medical students]).

Due consideration of both sides of the ledger in these appeals does not require the Court to resort to the most stringent tier{**36 NY3d at 228} of constitutional review. Indeed, the Court may take into account the State's legitimate concerns while simultaneously affording the petitioners "rigorous protection of [their] constitutional rights" (Anonymous, 13 NY3d at 47)—so long as it ensures that the level of scrutiny it applies to petitioners' claims is "not a 'toothless' standard of review" (Matter of Fay, 44 NY2d at 144). That standard—neither hyper-stringent nor utterly toothless—is intermediate scrutiny.

Applying that standard here, I conclude that DOCCS' policy of SARA incarceration of indigent individuals is unconstitutional. As discussed above, it is doubtful that the application of SARA's restriction to petitioners achieves the statute's legislative goals given the lack of evidence linking recidivism involving minors with SARA's school grounds restriction. But even if that were not the case, DOCCS' policy does not further correctional interests; it is intended as a stopgap for perceived administrative and budgetary constraints facing DHS (see Wilson, J., dissenting op at 247-248 ["DOCCS's cooperation with DHS serves a convenient purpose of allowing DHS to control access to shelter space; it does not alter the City's obligations under the Callahan consent decree to provide shelter to homeless individuals"]). In other words, DOCCS denies release not because continued incarceration serves the goals of the correctional system, or because it furthers individual reentry programming, but because DOCCS has concluded that it would be logistically difficult for the City to provide a SARA-compliant shelter bed upon request to sex offenders. However, DHS is obligated to provide shelter to those homeless individuals who seek it (see final judgment by consent ¶ 1 in Callahan; Wilson, J., dissenting op at 230-232, 244-246).

DOCCS argues that it must incarcerate individuals like petitioners until they have secured a SARA-compliant address, but DOCCS admits that it prevents offenders from requesting compliant shelter from DHS at the time of their scheduled release. In reality, we do not know if DHS will fail to comply with its obligations. As Judge Wilson explains in his dissent, which I join,^[FN6] there is no reason to believe it will not (Wilson, J., dissenting op at 244-246, 245-246 n 11). DOCCS' and the majority's assertion that indigent persons who need housing in the{**36 NY3d at 229} City will automatically violate SARA upon release, absent DOCCS' policy (majority op at 200-201), is unsupported by this record. Instead, by limiting the number of persons subject to SARA who present themselves to DHS on any given date, DOCCS has effectively minimized the demand on the City, at the cost of petitioners' liberty. Other than the shelter vacancy rate, the State has no evidence to support its determination that the City would fail to abide by its obligations under the Callahan consent decree. Any speculation about the legal rights of petitioners to shelter in the City is a matter to be resolved by the parties to the consent decree or, if necessary, through litigation seeking to modify or terminate the consent decree (see Callahan, 12 NY3d at 502). Perversely, DOCCS' policy has made it impossible to resolve the alleged "short supply" problem.

Moreover, DOCCS' policy must be assessed in light of the competing statutory and regulatory scheme governing parole and PRS. Continued incarceration, perhaps prolonged indefinitely, does nothing to further the legislative goals of providing parole in appropriate cases and completion of the PRS sentence in the community. Both are intended to facilitate successful reentry and reduce recidivism. If there are administrative, budgetary or legal obstacles to fulfilling the commands of the legislative enactments described above, those challenges must be addressed by our elected officials not DOCCS (see Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 174 [1993] ["the general wisdom or desirability" of State's economic choices "is a question for the legislature"]; Saxton v Carey, 44 NY2d 545, 549 [1978] [State's budgetary priorities "is for the Legislature to review," rather than the courts]). Nor may this Court approve of constitutional violations caused by well-meaning corrections officials.^[FN7]