IN RE: the Application of Juan Erazo

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Supreme Court, Orange County, New York.

IN RE: the Application of Juan Erazo, Petitioner, v. Kathleen G. Girbing, Superintendent Otisville C.F., New York State Department of Corrections and Community Supervision, Board of Parole, Respondents.

1009/2019

Decided: June 30, 2019

JUAN ERAZO Petitioner JEANE L. STRICKLAND SMITH Assistant Attorney General Attorney for Respondents One Civic Center Plaza Suite 401 Poughkeepsie, New York 12601

Petitioner moves for habeas corpus relief.

The following papers were read:

Order to Show Cause - Notice of Petition - 1 - 6

Affidavit of Juan Erazo - Verified Petition -

Affidavit in Support - Accompanying Documents

Verified Answer and Return - Annexed Exhibits - 7 - 9

Affidavit of Service

Reply Affidavit of Juan Erazo - Affidavit of Service - Exhibits 10 - 12

("Addendum" Reply of Juan Erazo could not be considered as it was not accompanied by an affidavit of service. In any event, even if considered the Court's determination would be the same.)

Upon the foregoing papers it is hereby ORDERED that the petitioner's application is denied and the petition is dismissed.

In this habeas corpus proceeding petitioner argues that he is being illegally detained by respondent New York State Department of Corrections and Community Supervision. Petitioner is currently serving a sentence of 12 years to life for Attempted Robbery in the Second Degree. However, petitioner has previously been convicted of Rape in the First Degree and is a designated level three sex offender. Petitioner remains at Otisville Correctional Facility because he does not have appropriate housing, i.e., Sexual Assault Reform Act ("SARA") compliant housing. Petitioner concedes that he is a level three sex offender and that if he was serving a sentence relating to his level three sex offender designation, then he would not be entitled to release. However, petitioner asserts that, since he is not currently serving a sentence related to his sex offender designation, the housing restrictions imposed by SARA pursuant to Executive Law Section 259-c(14) are inapplicable and he should be released.

Currently, there is a split between two Appellate Divisions as to whether Executive Law Section 259-c(14) applies only to level three sex offenders currently serving a sentence for a sex offense [holding of the 3rd Dept.], or to all designated level three sex offenders [holding of the 4th Dept.]. Neither the Appellate Division, 2nd Dept. nor the Court of Appeals has ruled on this issue. This Court, while not bound by the precedent of either the 3rd or 4th Dept., adopts the rationale of the Appellate Division, 4th Dept. and holds that Executive Law Section 259-c(14) "was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offenders" (People ex rel. Durham v. Annucci, 170 AD3d 1634 [4th Dept., 2019] quoting People v. ex rel.. Garcia v. Annucci, 167 AD3d 199, 204 [4th Dept., 2018]). Further, "as it is uncontested that petitioner is a level three sex offender and did not have a residence that complied with section 259-c(14), he did not establish that he was entitled to immediate release" (People ex rel. Durham v. Annucci, 170 AD3d 1634 [4th Dept., 2019]). It is important to recognize that the state has a vested interest in making sure parolees comply with all of the terms and conditions of their release, so that the parolee can successfully be re-integrated into society. If Petitioner were released without having a residence that complied with section 259-c(14), he would immediately be in violation of the law for failing to comply with his obligations as a level three sex offender. Not only would he be subject to being prosecuted for the same, his violation of the law would subject him to an immediate parole violation in the instant case. Accordingly, the petitioner's application must be denied and the petition must be dismissed.

The foregoing constitutes the Decision, Order and Judgment of this Court.

Dated: June 30, 2019

Goshen, New York

__________________________________________

HON. CRAIG STEPHEN BROWN

Acting Supreme Court Justice

Craig Stephen Brown, J.