FILED: DUTCHESS COUNTY CLERK 08/10/2020 09:58 AM
`NYSCEF DOC. NO. 12
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`INDEX NO. 2020-51535
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`RECEIVED NYSCEF: 08/10/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF DUTCHESS
`_______________________________________
`PEOPLE OF THE STATE OF NEW YORK
`Robert S. Dean on behalf of
`Andrew Allen, 88A-6829
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`,
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`Petitioner,
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`Affirmation and Return
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`Index No: 51535/2020
`Hon. Edward T. McLoughlin
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`-against-
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`LEROY FIELDS, SUPERINTENDENT FISHKILL C.F.,
`ANTHONY ANNUCCI, COMMISSIONER, DOCCS,
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`Respondent(s).
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`________________________________________________
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`Heather R. Rubinstein, an attorney admitted to practice before the courts of this state,
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`affirms the following under the penalties of perjury:
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`1.
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`I am an Assistant Attorney General of counsel to Letitia James, Attorney General
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`of the State of New York, the attorney for respondents. I submit this affirmation and supporting
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`exhibits as a return in opposition to this habeas corpus proceeding. Respondents deny all the
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`allegations contained therein.
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`PRELIMINARY STATEMENT
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`2.
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`Petitioner stands convicted of sexual abuse in the first degree. Petitioner was
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`sentenced as a second felony offender. Exhibit 1.
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`3.
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`Petitioner’s instant offense involved the repeated sexual assault of his wife's ten -
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`year old foster child. Petition ¶10.
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`4.
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`At his July 29, 2020 reappearance before the Board for a parole release interview,
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`Petitioner was still being held pending SARA compliance housing from his open date of March
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`11, 2019. As conceded by Petitioner, he was adjudicated as a Risk Level III offender, pursuant to
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`the Sex Offender Registration Act (“SORA”) (see Correction Law Article 6-C). Under SORA, a
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`Level III designation will be given “[i]f the risk of repeat offense is high and there exists a threat
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`to the public safety.” (Correction Law § 168-l (6)(c)).
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`5.
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`Since petitioner’s instant offense is defined in article one hundred thirty of the Penal
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`Law and was perpetrated upon a minor, he is subject to the requirements of Section 259-c(14) of
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`the Executive Law1 (SARA) and Section 70.45(3) of the Penal Law, which require the Board of
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`Parole to impose a mandatory condition of post release supervision (PRS) prohibiting him from
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`entering “school grounds” – defined as any area within one thousand feet of school property (Penal
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`Law § 220.00) – and thus also from residing within one thousand feet of a school during his term
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`of PRS. Compliance with SARA is a special condition of petitioner’s release PRS until SARA-
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`compliant housing was secured. Exhibit 3.
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`6.
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`As Petitioner has been determined to be a Level III offender under SORA, he is
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`subject to Executive Law § 259-c(14), a component of New York’s Sexual Assault Reform Act,
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`(“SARA”), (Chapter 1 of the Laws of 2000, § 8, as amended by Chapter 544 of the Laws of 2005,
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`§ 2), which requires that the Board impose a condition on his release prohibiting entry onto “school
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`grounds,” as defined in Penal Law § 220.00 (14).
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`7.
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`This restriction on the entry onto school grounds has been found to create an
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`implicit restriction on residing within the area described by Penal Law §220.00 (14) (see Executive
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`Law § 259-c(14); People v Diack, 24 NY3d 674, 682 (2015)). Thus, the Board will impose a special
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`condition, referred to within the Department as the “SOH 220” special condition, as follows:
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`“I will propose a residence to be investigated by the Department of
`Corrections and Community Supervision and will assist the
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`1 [N]otwithstanding any other provision of law to the contrary, where a person serving a sentence for an offense
`defined in article one hundred thirty… of the penal law and the victim of such offense was under the age of eighteen
`at the time of such offense, 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, as that term is defined in subdivision fourteen of section 220.00 of the penal law.... Nothing in this
`subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such
`sentenced offender.
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`Department in any efforts it may make on my behalf to develop a
`residence.
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`If I am deemed a Level III risk pursuant to Article 6-C of the
`Correction Law - or - I am serving one or more sentences for
`committing or attempting to commit one or more offense(s) under
`Articles 130, 135 or 263 of the Penal Law or sections 255.25, 255.26
`or 255.27 of the Penal Law and the victim of such offense(s) was
`under 18 years of age at the time of the offense(s), and as such I must
`comply with section 259-c(14) of the Executive Law, I will not be
`released until a residence is developed and it is verified that such
`address is located outside the Penal Law definition of school grounds
`and is approved by the Department.
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`8.
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`In pertinent part, Executive Law § 259-c(14) provides:
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`‘the board shall require, as a mandatory condition of such release, that
`such sentenced offender shall refrain from knowingly entering into or
`upon any school grounds, as that term is defined in subdivision
`fourteen of section
`220.00 of the penal law, or any other facility or institution primarily used
`for the care or treatment of persons under the age of eighteen while
`one or more of such persons under the age of eighteen are present…’
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`9.
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`Penal Law §220.00(14) provides:
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`‘School grounds’ means (a) in or on or within any building, structure,
`athletic playing field, playground or land contained within the real
`property boundary line of a public or private elementary, parochial,
`intermediate, junior high, vocational, or high school, or (b) any area
`accessible to the public located within one thousand feet of the real
`property boundary line comprising any such school or any parked
`automobile or other parked vehicle located within one thousand feet
`of the real property boundary line comprising any such school. For
`the purposes of this section an “area accessible to the public” shall
`mean sidewalks, streets, parking lots, parks, playgrounds, stores and
`restaurants.”
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`10.
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`As such, Petitioner cannot be released to the community without assurance that he
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`would refrain from entering a “school ground” as defined above.
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`11.
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`At the start of Petitioner’s PRS, Petitioner had not secured appropriate housing
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`compliant with SARA and his other conditions of release. He was therefore placed at Fishkill
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`Correctional Facility to begin serving his term of PRS. (citing Penal Law § 70.45(3)). Petitioner's
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`FILED: DUTCHESS COUNTY CLERK 08/10/2020 09:58 AM
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`INDEX NO. 2020-51535
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`PRS is not completed until March 11, 2024. Exhibit 1. Petitioner has not secured appropriate
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`housing, and DOCCS exercised its authority under Correction Law to continue housing Petitioner
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`at the Fishkill Correctional Facility. See Chronology Exhibit 4.
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`12.
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`Petitioner, now, seeks an order of immediate release based largely on COVID-19.
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`Petitioner argues he is being unlawfully “detained and restrained” because of his placement at the
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`Fishkill Residential Treatment Facility increases his risk of contracting COVID-19 and that risk
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`violates his constitutional right against cruel and unusual punishment and deprives him of his
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`constitutional right to life. As an initial matter, habeas is not the proper vehicle for those
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`challenges. And in any event, Petitioner fails to support his factual allegations or his legal
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`arguments. As of July 28, 2020, Petitioner did not seek medical parole. See Chronology, Exhibit
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`4.
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`13.
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`For the reasons set forth below, the habeas petition should be denied in its entirety
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`– including for the threshold reason that habeas relief is not available for Petitioner’s claims here.
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`See People ex rel Gottlieb v Barometre, Index No. EF2321/2020, Orange CF. Appendix of Cases
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`attached hereto as Exhibit 6.
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`HABEAS RELIEF IS NOT AVAILABLE BECAUSE
`PETITIONER IS NOT ENTITLED TO IMMEDIATE RELEASE
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`Habeas relief is appropriate only where success on the merits of an inmate’s legal
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`14.
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`contentions would make him “entitled to immediate release” from custody. People ex rel. Cassar
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`v. Margiotta, 150 AD3d 1254, 1256 (2d Dept. 2017); see People ex rel. Scharff v. Frost, 198 NY
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`110, 11 (1910); CPLR §7002(a).
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`15.
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`A writ of habeas corpus may be sustained only when the petitioner is entitled to
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`immediate release from custody. See People ex rel. Kaplan v Commissioner of Correction, 60
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`NY2d 648 (1983); People ex rel. Vansteenburg v Wasser, 69 AD3d 1135 (3d Dept 2012).
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`FILED: DUTCHESS COUNTY CLERK 08/10/2020 09:58 AM
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`INDEX NO. 2020-51535
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`RECEIVED NYSCEF: 08/10/2020
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`Petitioner has been lawfully placed at a residential treatment facility to serve his PRS until SARA
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`compliant housing has been located. People ex rel. McCurdy v. Warden, Westchester County
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`Corr. Facility, 164 A.D.3d 692, 694-95 (2d Dept. 2018). Petitioner fails to make any argument
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`challenging the validity of that placement. Petitioner was convicted of criminal sexual act and
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`sexual abuse of a minor pursuant to Penal Law §§ 130.50, 130.65. Therefore, compliance with
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`SARA’s school grounds restriction is a mandatory condition of his release, and DOCCS cannot
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`release Petitioner to the community until he has secured SARA compliant housing. See Matter of
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`Gonzalez v Annucci, 32 NY3d 461, 466 (2018); People v. Diack, 24 NY3d 674, 682 (2015); See
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`Executive Law §259-c(14). Penal Law §70.45(3) (requiring imposition of conditions of PRS in
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`the same manner as conditions of parole or conditional release).
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`16.
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`Petitioner does not directly challenge the applicability of the SARA condition or
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`the validity of his confinement. Rather, Petitioner argues that his placement constitutes cruel and
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`unusual punishment and violates his substantive due process right to life because the facility cannot
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`protect him from contracting and (possibly) dying from COVID -19. He also makes misguided
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`procedural due process and ex post facto arguments. But even if he successfully showed that the
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`current protocols and conditions at the facility were constitutionally inadequate, he would not be
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`entitled to immediate termination of his PRS sentence and release to the community, as he
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`contends. People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 174 A.D.3d 992
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`(3d Dept. 2019. See People ex rel. Barnes v Allard, 25 AD3d 893, 894 (3d Dept. 2006 (even
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`“deliberate indifference to [petitioner’s] medical needs . . . would not entitle him to immediate
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`release”); People ex rel. Sandson v Duncan, 306 AD2d 716, 716-717 (3d Dept. 2003)(same).
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`While Petitioner may seek relief regarding changes to the conditions at the RTF, he is not entitled
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`to an order terminating his PRS sentence. A challenge to inadequate conditions at a residential
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`treatment facility is not a lawful basis for ordering Petitioner’s release and is not a legal basis to
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`suspend Petitioner’s sentence. In fact, it is direct contravention to CPL 430.10. People ex rel.
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`Carroll v Keyser, 2020 N.Y. App. Div. LEXIS 3281 (3d Dept. 2020); See also recent COVID
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`cases (attached hereto in Appendix of Cases). See also People v Bedell, 10 AD2d 922 (4th Dept.
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`1994).
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`17.
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`Petitioner could commence an Article 78 proceeding challenging the adequacy of
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`the current conditions at Fishkill to safeguard his health. People ex rel. Sandson, 306 AD2d at
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`717. Conversion of this proceeding to an Article 78 proceeding to modify the conditions is
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`inappropriate here, however, because Petitioner has not exhausted administrative remedies, and
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`constitutional claims do not exhaust where administrative remedies could provide the requested
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`relief. See Matter of Foster v. New York State Parole Bd., 131 A.D.3d 1332 (3d Dept. 2015);
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`Matter of Piedra v. New York State Div. of Parole, 117 A.D.3d 477 (1st Dept. 2014).
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`THE PETITION FAILS TO STATE A CAUSE OF ACTION
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`18.
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`Special conditions may constitutionally be placed on inmates’ right to release to
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`community supervision. Williams v. Dept. of Corr. & Community Supervision, 136 A.D.3d 147,
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`158 (1st Dept. 2016) (holding SARA to be constitutional). “Parolees subject to SARA have only
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`conditional liberty. They have no liberty interest, let alone a fundamental right, to be free from
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`special conditions of parole.” Id. at 164 (citation omitted); see also Morrissey v Brewer, 408 US
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`471, 483 (1972)(parolee’s earlier conviction “justifies imposing extensive restrictions on the
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`individual’s liberty” through conditions of parole). The courts have upheld SARA in the face of
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`various constitutional challenges as rationally related to the legitimate government interest in
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`deterring recidivist sex offenders and limiting access to potential child victims. See Matter of
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`Devine v Annucci, 150 AD3d 1104, 1106 (2d Dept. 2017); Williams, 136 AD3d at 160-165.
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`Housing a level 2 sex offender, whose victim was seven years old, at a RTF until he can secure a
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`SARA compliant residence is thus a valid, rational practice to protect the safety of the public.
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`Williams, 136 AD3d at 165; see generally People ex rel. Johnson v. Supt. Adirondack C.F., 174
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`A.D.3d 992, 994-995 (3d Dept. 2019); Matter of Bryan Boss v. New York State Division of Parole,
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`89 A.D.3d 1265 (3d Dept. 2011); Matter of Breeden v. Donnelli, 26 A.D.3d 660 (3d Dept. 2006);
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`Matter of Lynch v. West, 24 A.D.3d 1050 (3d Dept. 2005); Matter of James Billups v. New York
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`State Division of Parole, Chair, 18 A.D.3d 1085 (3d Dept. 2005).
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`19.
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`The Department would fail to effectuate the mandatory condition of the SARA law
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`if it allowed a sex offender such as Petitioner, who is a level-3 offender subject to SARA while on
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`community supervision, to reside someplace not SARA-compliant. A released sex offender would
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`also violate this mandatory condition of release, Executive Law § 259-c(14), and could be exposed
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`to re-incarceration for violating this condition were he to reside in such a residence. The
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`Department has therefore lawfully housed Petitioner at an RTF until SARA compliant residence
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`is secured. McCurdy, 164 AD3d at 694-95.
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`20.
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`Petitioner also fails to support his allegations (i) that “it is impossible for DOCCS
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`to protect him and (ii) that, due to his medical conditions, his placement at constitutes cruel and
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`unusual punishment and will deprive him of his very right to life in violation of his substantive
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`due process rights. In light of the protocols and practices DOCCS instituted, Petitioner cannot
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`satisfy his burden of showing that DOCCS acted with deliberate indifference to his medical needs
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`or “functionally” impose a death sentence).
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`21.
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`The evidence shows that DOCCS has taken significant protective measures to
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`safeguard those in custody. COVID-19 is certainly a serious health concern, but this concern exists
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`both within correctional facilities and outside them. In any event, Fishkill is not indifferent to the
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`inmates’ safety, but is taking aggressive steps to minimize risk. Id. In its history, the Department
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`has successfully managed infectious outbreaks, such as tuberculosis, AIDS, and Hepatitis C.
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`DOCCS has a comprehensive Pandemic Flu protocol that has been modified for COVID-19. The
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`Department takes the spread of any infectious disease very seriously and has protocols in place to
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`promote the health and safety of staff, incarcerated individuals, visitors and volunteers in the event
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`that such a spread should take place. Each facility maintains an emergency control plan that is
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`reviewed annually and is uniquely designed to meet the facility’s needs, including preparedness
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`measures, response mechanisms and short- and long-term recovery provisions. See Affidavit of
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`Fields attached hereto. See also supporting Affirmation of Charles Quackenbush attached hereto.
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`22.
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`DOCCS retains supplies, equipment and other resources that can be readily
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`available, if needed, to those impacted in correctional facilities during the spread of an infectious
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`disease. As with the occurrence of any widespread public health threat, the Department is involved
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`in ongoing discussions and preparations—including protocol review and emergency supply
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`inventory—to ensure that DOCCS’ policies and procedures are as up to date as possible.
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`Additionally, the Department has medical staff specially trained in infection control employed in
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`facilities across the state. The Department has negative air flow isolation rooms, and Regional
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`Medical Units. DOCSS has been conducting table top exercises, and have plans for each facility
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`to implement should there be significant staff absences. See Affirmation of Quackenbush attached
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`hereto and Superintendent Affidavit. For security reasons, we cannot give specific details on these
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`plans and provisions.
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`23.
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`Both staff and incarcerated individuals have received information on preventative
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`measures to stay healthy, including the top recommendation by the CDC and State Department of
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`Health: the regular use of soap and water, which is readily available throughout Fishkill along with
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`hand sanitizer and additional access to sanitizing cleaning materials. The Department has also
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`implemented several other measures, such as, but not limited to: 1) Temporarily suspending all
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`intake of incarcerated individuals from county facilities. 2) Internal transfers of incarcerated
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`individuals had been stopped except for medical, disciplinary and other exigent circumstances to
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`ensure the continued health and safety of our staff and incarcerated population. 3) Temporarily
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`suspending visitations. 4) Requiring non-security and other civilian staff to remain home 5)
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`Implementing a health/travel questionnaire for staff entering facilities. 6) Regularly distributing
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`guidance from the Department of Health to all staff and population about the important steps to
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`take to combat the virus. 7) Displaying posters with information on COVID-19 and safety tips
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`throughout DOCCS facilities and offices statewide. 8) Regularly showing a video to the
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`incarcerated population and staff at the facilities on proper handwashing entitled “Put your hands
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`together”. 9) Issued enhanced cleaning/sanitizing measures, consistent with CDC guidelines, for
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`office surfaces, devices and disinfecting procedures. Face masks are being made available to staff
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`and residents at the facility and the above referenced precautions have been instituted throughout
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`Fishkill. Affidavit of Superintendent attached hereto.
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`24.
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`Petitioner also has not made a specific factual showing that he is at risk of
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`contracting and dying from COVID-19 that cannot be remedied by DOCCs’ protective measures.
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`Instead of providing medical records or other evidence explaining his particular susceptibility, He
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`fails to distinguish himself from hundreds of others in DOCCS’s custody of similar age or who
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`have similar or more severe conditions. Rather, petitioner’s medical summary reflects petitioner’s
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`recent negative covid test and his history of refusing the annual flue vaccination. Exhibit 5.
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`25.
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`Regardless, Petitioner has not shown that he is at greater risk while at Fishkill RTF
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`than he would be if released to the community. Specifically, no SARA compliant address has been
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`provided to Parole or the Court in this special proceeding – despite ample opportunity to do so
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`prior to this proceeding – and thus it is unknown whether he could remain isolated, receive medical
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`care for his underlying conditions and obtain necessary essentials without increasing his risk of
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`contracting COVID 19 in the community. People ex. Rel. Calloway v. Skinner, 33 N.Y.2d 23, 33-
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`34, (1973); People ex. Rel. Little v Monroe, 38 A.D.2d 398, 400 (2d Dept. 1972).
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`DUE PROCESS DOES NOT ENTITLE PETITIONER TO RELEASE
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`26.
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`As an individual who has been duly convicted of a criminal offense and
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`committed to the custody of DOCCS, Petitioner has no constitutional or inherent right to parole
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`release before the completion of his sentence; “the conviction, with all its procedural safeguards,
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`has extinguished that liberty right . . .” Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
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`442 U.S. 1, 7 (1979), quoting Meachum v. Fano, 427 U.S. 215, 224 (1976).
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`27.
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`Thus, in order to have an interest in parole which is protected by the Due Process
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`Clause, an individual must have a legitimate expectation of release granted by the state’s
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`statutory scheme. (Id.) As the New York statutory scheme offers no such expectation, individuals
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`“have no liberty interest in parole, and the protections of the Due Process Clause are
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`inapplicable.” Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001).
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`28.
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`Once an individual has been granted parole, such a liberty interest has been found
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`to create a protectable liberty interest which requires due process be afforded before such interest
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`is revoked after release Morrissey v. Brewer, 408 U.S. 471, 483-84 (1972), or rescinded prior to
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`release. Victory v. Pataki, 814 F.3d 47, 66 (2d Cir. 2016).
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`29.
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`However, such an individual does not have “the absolute liberty to which every
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`citizen is entitled, but only of the conditional liberty properly dependent on observance of special
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`parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972). Thus,
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`the nature and scope of the liberty interest afforded a parolee is defined by those special parole
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`restrictions.
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`30.
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`“The imposition of a special condition is discretionary in nature and ordinarily
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`beyond judicial review as long as it is made in accordance with law and no positive statutory
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`requirement is violated.” Matter of Williams v N.Y. State Div. of Parole, 71 A.D.3d 524, 525
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`(1st Dept. 2010), appeal dismissed 15 N.Y.3d 770 (2010), lv denied 15 N.Y.3d 710 (2010).
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`31.
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`Consequently, “if the condition is rationally related to the inmate's past conduct
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`and future chances of recidivism, Supreme Court has no authority to substitute its own discretion
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`for that of the individuals in charge of designing the terms of a petitioner's parole release.” Id.;
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`accord, Matter of Maldonado v. N.Y. State Div. of Parole, 87 A.D.3d 1231, 1232 (3rd Dept.
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`2011).
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`32.
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`Even “fundamental rights […] may be restricted by parole conditions that are
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`‘reasonably related to legitimate penological interests.’” Matter of George v. N.Y. State Dept. of
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`Corr. & Community Supervision, 107 A.D.3d 1370, 1372 (3d Dept. 2013), quoting Turner v.
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`Safley, 482 U.S. 78, 89 (1987). In this regard, sex offenders, such as petitioner, “have no liberty
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`interest, let alone a fundamental right, to be free from special conditions of parole”. Matter of
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`Williams v. Dep't of Corr. & Cmty. Supervision, 136 A.D.3d 147, 164 (1st Dept. 2016), appeal
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`dismissed 29 N.Y.3d 990 (2017).
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`33.
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`Petitioner’s grant of release has not been rescinded; in the event he satisfies the
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`residency special condition, he will be released. His continued detention inconsistent with his
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`parole grant. His entitlement to release on parole ease is premised on the satisfaction of the
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`special conditions.
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`34.
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`Even prior to the enactment of SARA and its mandate that the Board impose the
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`SOH 220 condition, it was “within the discretion of the [Board] to impose the special condition
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`of securing approved housing” even where the inability to satisfy the condition prevented release
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`See Matter of Monroe v. Travis, 280 A.D.2d 675, 676 (2d Dept. 2001); People ex rel. Wilson v.
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`Keane, 267 A.D.2d 686, 686 (3d Dept. 1999); People ex rel. Travis v. Coombe, 219 A.D.2d 881,
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`881 (4th Dept. 1995). This authority to impose residency restrictions discretionarily remains
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`unabated, as Executive Law 259-c(14) provides that its provisions “shall not be construed as
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`restricting any lawful condition of supervision that may be imposed on such sentenced offender”.
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`
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`35.
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`Thus, in comparable circumstances, the Third Department has affirmed the
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`continued confinement of a parolee who had not satisfied the residency condition, stating that
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`“although the open parole release date granted to petitioner cannot be revoked absent procedural
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`due process, [the court was] unpersuaded that he has a further ‘liberty interest [or] fundamental
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`right . . . to be free from special conditions of parole’ regarding his residence under either the
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`Federal or the State Constitution” People ex rel. Johnson v. Superintendent, Adirondack Corr.
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`Facility, 174 A.D.3d 992, 994 (3rd Dept. 2019), quoting Matter of Williams, 136 A.D.3d at 164.
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`
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`36.
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`Consequently, Petitioner’s grant of parole does not provide him with any
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`entitlement to release divorced from the special conditions, it provides him an entitlement to
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`release provided he satisfies the conditions, including the SOH 220 condition requiring a
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`residence approved by Community Supervision.
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`SARA DOES NOT AMOUNT TO EX POST FACTO PUNISHMENT
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`37.
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`SARA has repeatedly been found to be non-punitive in both intent and effect by
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`both the First and Second Departments. Matter of Devine v. Annucci, 150 A.D.3d 1104 (2d
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`Dept. 2017); Matter of Williams, 136 A.D.3d 147.
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`38.
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`In both cases, the courts concluded that the statute did not reflect a punitive intent
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`and, therefore the petitioners were required to demonstrate by the “clearest proof” that the statute
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`was “’so punitive either in purpose or effect as to negate [the legislature's] intention to deem it
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`civil’” Matter of Devine v. Annucci, 150 A.D.3d 1104, 1106 (2d Dept. 2017), quoting Smith v.
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`Doe, 538 U.S. 84, 92 (2003); accord Matter of Williams, 136 A.D.3d 147, 156 (1st Dept. 2017).
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`
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`39.
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`Both courts concluded that the petitioners in the respective cases had failed to do
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`so. They did not, however, limit their holdings to those petitioners or indicate that the
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`petitioner’s release to parole had, in any way, affected the conclusions regarding the punitive
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`effect. In fact, the court in Matter of Williams noted that while restrictions imposed by SARA
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`bear similarity to traditional criminal punishments, because it “applies to parolees, who
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`otherwise have restricted liberty, these factors do not strongly support a conclusion that SARA is
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`punitive in effect” (136 A.D.3d at 157).
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`
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`40.
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`Thus, in light of the fact that petitioner has no entitlement to release without
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`satisfying the SOH 220 condition, he suffers no deprivation of constitutionally protected rights
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`which is appreciably distinct from that of the petitioners in Matter of Williams and Matter of
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`Devine. Thus, he has not established that these cases are not dispositive, let alone met the heavy
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`burden of showing punitive effect by the “clearest proof” necessary to “override legislative intent
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`and transform what has been denominated a civil remedy into a criminal penalty” Smith v. Doe,
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`538 U.S. at 92; accord Matter of Devine, 150 A.D.3d at 1106; Matter of Williams, 136 A.D.3d at
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`156-57.
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`
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`41.
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`Contrary to petitioner’s argument, both the First and Second Department have
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`held that SARA was enacted to protect children from recidivist sex offenders and not to punish
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`sex offenders for past crimes, and therefore does not violate the Ex Post Facto Clause. See Matter
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`of Devine v. Annucci, 150 A.D.3d 1104 (2d Dept. 2017); Matter of Williams v. Department of
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`Corr. & Community Supervision, 136 A.D.3d 147 (1st Dept. 2016).
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`
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`42.
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`Also contrary to petitioner’s argument, both the First and Second Departments
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`have also held that SARA does not violate the substantive due process rights of those on parole.
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`See Matter of Williams v. Department of Corr. & Community Supervision, 136 A.D.3d 147 (1st
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`Dept. 2016); People ex rel. Ortiz v. Breslin, 183 A.D.3d 577 (2d Dept. 2020). Contrary to
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`Medina’s contention (see Pet. at 26-28) he does not have a liberty interest constituting a
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`fundamental right to be free from SARA’s school-grounds condition. “Parolees subject to SARA
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`have only conditional liberty. They have no liberty interest, let alone a fundamental right, to be
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`free from special conditions of parole.” Matter of Williams, 136 A.D.3d at 164 (citation
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`omitted); People ex rel. Ortiz, 183 A.D.3d at 580; see also Morrissey v. Brewer, 408 U.S. 471,
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`483 (1972) (parolee’s earlier conviction “justifies imposing extensive restrictions on the
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`individual’s liberty” through conditions of parole).
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`
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`43.
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`The First and Second Departments have concluded that SARA is rationally
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`related to a legitimate governmental interest and thus satisfies rational basis review, which
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`applies substantive due process challenges to governmental actions that, as here, do not affect
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`fundamental rights. See People v. Knox, 12 N.Y.3d 60, 67 (2009). The Second Department
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`explained in People ex rel. Ortiz that DOCCS's placement of a “sex offender into residential
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`treatment facility housing during his or her period of PRS until he or she is able to locate SARA-
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`compliant community housing” will satisfy substantive due process “so long as it is rationally
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`related to any conceivable legitimate [s]tate purpose,” and that such a placement is rationally
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`related to “the aim of keeping such offenders at a distance from school children.” 183 A.D.3d at
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`580. Similarly, the Second Department explained in Matter of Devine v. Annucci, 150 A.D.3d
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`1104, 1106 (2d Dep’t 2017), that SARA was enacted for legitimate, nonpunitive purposes of
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`protecting children from recidivist sex offenders, and any dispute regarding “better or wiser
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`ways” to achieve those purposes was for the Legislature, not the courts. Id. at 1106-07. The First
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`Department likewise concluded, in the context of a substantive due process challenge, that
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`SARA is rationally related to the legitimate government interest of protecting children from
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`sexual predators. Matter of Williams, 136 A.D.3d at 165; see also Id. at 160-64. Among other
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`things, the First Department explained that SARA reflects a “rational connection between
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`deterring recidivism and limiting access to potential victims.” Id. at 161. And while Medina
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`contends that SARA is not narrowly tailored (which is not required to satisfy rational basis
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`review), the First Department also concluded that an individualized assessment is not necessary
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`for purposes of imposing SARA’s mandatory condition because “the categories of parolees to
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`whom SARA applies is sufficiently narrowly drawn and reasonably related to an assessment of
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`recidivism so as to pass constitutional muster.” Id. at 163.
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`44.
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`SARA still sa