People ex rel. Johnson v. Superintendent, Adirondack Corr. Facility

36 N.Y.3d 187

163 N.E.3d 1041

140 N.Y.S.3d 124

The PEOPLE of the State of New York EX REL. Fred JOHNSON, Appellant,

v.SUPERINTENDENT, ADIRONDACK CORRECTIONAL FACILITY, et al., Respondents.

The People of the State of New York ex rel. Angel Ortiz, Appellant,

v.Dennis Breslin, Superintendent of Queensboro Correctional Facility, et al., Respondents.

No. 74, No. 75

Court of Appeals of New York.

November 23, 2020

OPINION OF THE COURT

FAHEY, J.

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.

I.

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 two years to life. Johnson had a history of incarcerations followed by 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 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, 2017.¹

Based on his SORA risk level designation and the crime for which he was serving a sentence,² 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 N.Y.3d 674, 682, 3 N.Y.S.3d 296, 26 N.E.3d 1151 [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 (N.Y.CDHS) 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 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 A.D.3d 992, 106 N.Y.S.3d 408 [3d Dept. 2019] ). Johnson appeals as of right pursuant to CPLR 5601(b)(1).

II.

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 transferred to and participate in the programs of a residential treatment facility" ( Penal Law § 70.45[3] ).³ The following month, DOCCS transferred Ortiz to the RTF at Queensboro Correctional Facility.

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 postrelease 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 A.D.3d 577, 123 N.Y.S.3d 608 [2d Dept. 2020] ).⁴ Ortiz appeals as of right pursuant to CPLR 5601(b)(1).

III.

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 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 N.Y.3d 461, 470, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018], citing Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [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 N.Y.3d 660, 664, 944 N.Y.S.2d 448, 967 N.E.2d 671 [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 N.Y.3d 124, 134, 20 N.Y.S.3d 304, 41 N.E.3d 1119 [2015] ; McManus, 18 N.Y.3d at 664 n. 2, 944 N.Y.S.2d 448, 967 N.E.2d 671 ).

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 A.D.3d at 579, 123 N.Y.S.3d 608 ). We agree that these issues should be reviewed (see generally Gonzalez, 32 N.Y.3d at 470–471, 93 N.Y.S.3d 236, 117 N.E.3d 795 ). As in Johnson, we convert the habeas proceeding in Ortiz to a declaratory judgment action.

IV.

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 level three sex offender.⁵ 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 grounds, as that term is defined in subdivision fourteen of section 220.00 of the penal law."⁶

As amended in 2005, Executive Law § 259–c ...