By Thomas Prohaska
NORTH TONAWANDA – The city’s law barring sex offenders from living within a quarter-mile of a school, park or playground no longer applies to one man – the one trying to have the law invalidated in court.
State Supreme Court Justice Catherine Nugent Panepinto issued late last month a temporary restraining order barring the city from enforcing the buffer zone law against the plaintiff, [name withheld].
His attorney, Kathy E. Manley of Albany, said it’s a first step toward throwing out the law completely.
City Attorney Shawn P. Nickerson said Tuesday that Manley tried to persuade Panepinto to do exactly that in July 24 arguments before Panepinto.
“Though [the restraining order] is certainly unfortunate, we’re fighting to uphold our law. [Manley] wanted to invalidate the law against all sex offenders in North Tonawanda, but I successfully argued against that,” Nickerson said.
Manley called the buffer zone laws “clearly invalid.”
“They’ve been invalidated every time they’ve been challenged,” she said. “It’s not up to a locality to banish people and force them to live outside their borders. The state has pre-empted that field.”
Manley and other attorneys have been successful in knocking down local buffer zone laws all over the state, on the grounds that localities are constitutionally barred from passing a law tougher than the state’s own.
The state law bars sex offenders from living within 1,000 feet of a school, park or other facility where children gather, but it only applies to offenders on probation or parole. North Tonawanda’s law, like most local buffer zone ordinances, tried to govern all sex offenders.
Manley said she will file a summary judgment shortly to try to kill the North Tonawanda law completely. Nickerson said he expects there will be oral arguments sometime this fall.
“These laws are counterproductive. There’s no evidence they protect anyone,” Manley said.
[name withheld], 55, a Level 3 sex offender – the most serious of the three groupings under New York’s Sex Offender Registration Act – was arrested several months ago on charges of violating the law.
According to the state sex offender website, [name withheld] lives on Keil Street, where Manley said he lives with friends. Nickerson said that’s within a quarter-mile of a playground.
North Tonawanda’s buffer zone law was first challenged in court in August 2011 by convicted child molester [name withheld], who said he was forced to stay in state prison after the expiration of his sentence because state parole officials vetoed his planned residence as a violation of the city’s law.
According to [name withheld]’s lawsuit, a school was 1,320 feet, or exactly one-quarter mile, from where he wanted to live.
[name withheld], 51, a Level 3 sex offender, finally got out of prison in January 2012, 10 months after his parole date, and is now living on Chilton Avenue in Niagara Falls, according to the state website. He remains on post-release supervision, so the state’s 1,000-foot rule applies to him, Manley said.
She thinks that’s why [name withheld]’s suit against North Tonawanda still hasn’t been decided, but things started happening when [name withheld] joined in after he was charged with violating the law.
[name withheld] was placed on the sex offender registry in 2001 after a third-degree sodomy conviction for having sexual contact with an 11-year-old boy.
Local buffer zone laws have been thrown out in recent years in the Town of Newfane, and in Albany, Rensselaer, Schenectady, Saratoga, Warren, Nassau and Rockland counties. An Erie County case is awaiting decision, Manley said.
Nassau County appealed its defeat to the Appellate Division of State Supreme Court. Manley said its upcoming opinion will be the first higher-court ruling on the pre-emption principle which has been used to cancel all the buffer zone laws challenged so far.