08/22/2011
By Thomas J. Prohaska
North Tonawanda rule exceeds state buffer zone
NORTH TONAWANDA -- Three-time child molester [name withheld] wants to live in North Tonawanda and is suing the city to overturn a law that he says prevents him from doing so.
[name withheld], who is on the state's list of its most dangerous sex offenders, has been eligible for parole from state prison since March, but he remains behind bars because the state Division of Parole has vetoed his proposed residence.
North Tonawanda has a law that bars major sex offenders from living within one-quarter mile of any school, park, playground or other facility where children congregate.
That's 1,320 feet, and according to the lawsuit, that is exactly the distance between a school and the place where [name withheld] wants to live.
Attorney Kathy Manley of Albany said the North Tonawanda law must be overturned because the state Division of Parole has a 1,000-foot buffer zone rule between schools and sex offenders' residences.
If the state prohibits something, no local government may pass a tougher law on the subject, the lawyer contends.
The lawsuit doesn't mention where [name withheld] wants to live nor the school it would be near.
Manley succeeded in invalidating sex offender buffer zone laws of more than 1,000 feet in Albany, Rensselaer and Schenectady counties, and other attorneys have won similar cases in Rockland and Saratoga counties.
North Tonawanda City Attorney Shawn P. Nickerson isn't taking the lawsuit lying down.
"We will certainly defend our legislation to prevent those folks from living near where children frequent," he said.
Nickerson said Level 3 offenders, such as [name withheld], are "the highest risk factor for recidivism."
Manley, who is on the legal committee of the Albany chapter of the New York Civil Liberties Union, said she thinks buffer zone laws are constitutional, but unwise.
"It probably would be upheld as a condition of probation or parole. They have a lot of leeway," she said.
But the Sex Offender Registration Act should be enough for the public to keep track of offenders, Manley says. It requires sex offenders to report their home addresses to the state, which posts them online in the cases of Level 2 and 3 offenders.
Because of buffer zone laws, some sex offenders avoid reporting as finding a place to live becomes difficult, and that defeats the purpose of registration laws, Manley said.
Buffer zone laws "drive people underground because they can't find any place to live," she said. "It basically banishes them. There are no statistics showing they're effective in any way."
The same point was made earlier this month in a State Supreme Court hearing by John R. Nuchereno, a local defense attorney who represents sex offenders when the state tries to commit them to mental institutions for life under New York's civil confinement law.
"It's my understanding that people being released from prison as sex offenders ... are being returned to prison for lack of suitable housing," Nuchereno said.
The state Division of Criminal Justice Services seems to agree with Manley. In a "Myths and Facts" page on the sex offender registry website, the agency writes, "Myth: Residency restrictions make communities safer."
It cites statistics from the U.S. Justice Department that show 93 percent of sex crime victims under age 17 were assaulted by someone they knew, and 84 percent of sexual assaults on children under 12 occurred in a home.
[name withheld]'s lawsuit says the North Tonawanda law impinges on his liberty "by effectively preveting him from being released from prison."
[name withheld]'s conditional release date was March 17, the day he became eligible for parole on a six-year sentence he received in 2006 from then-Niagara County Judge Peter L. Broderick Sr. for a guilty plea to a reduced charge of attempted first-degree sexual abuse.
[name withheld], who was living on Hawley Street in Lockport at the time of his crime, knocked on the door of a Walnut Street home to ask to use the phone, and while he was in the house, [name withheld] reached under a 5-year-old girl's clothing.
[name withheld] remains in Gowanda Correctional Facility because of his determination to live in North Tonawanda and the parole department's ruling that his preferred address violates the city's buffer zone law.
[name withheld] already was a Level 3 sex offender because of a 1992 conviction for molesting two boys, ages 6 and 10, in Lockport.
Another Level 3 sex offender recently tried to overturn Niagara County's 1,000-foot buffer zone, but his case was dismissed Aug. 4 by State Supreme Court Justice Richard C. Kloch Sr.
[name 2 withheld], 47, said he was being barred from Niagara Falls by the law, but Kloch said he is aware of other sex offenders living in the Falls whose addresses were approved by parole. He said [name 2 withheld] didn't offer any addresses for consideration.
[name 2 withheld], a former Falls resident, was convicted of first-degree rape in Schenectady in 1994 and was approaching parole on a 20-year sentence.
