People v. Michael Diack


Issue before the Court: Whether Nassau County could prosecute someone registered as a level one sex offender, who had successfully completed parole in 2004, for violating a local law prohibiting any registered sex offender from living within 1,000 feet from a school, even though New York State law did not impose such a broad residency restriction on such individuals who were no longer under probation or parole supervision.


Held: The Court held that Nassau County was preempted by the state regulatory framework from enacting its own residency rules. Just because the defendant was not subject to any State residency restriction did not mean that local government could legislate its own limitations.


CAL Observes: This ruling addressed the proliferation of local laws, in dozens of New York municipalities, that attempted to place strict housing controls on individuals convicted of sex offenses. The Court did not find that the local laws actually “conflicted” with any of the State regulations. Nonetheless, New York State’s comprehensive regulatory scheme showed an intent to “occupy the field of sex offender residency restrictions” to the exclusion of a locality exercising its own police power in this regard. 


For our clients dealing with the challenges of reentry, the Court’s decision recognized that people leaving prisons have a right to return to their communities. State regulations are designed to “balance” the competing factors of public safety and the provision of “suitable and appropriate housing” for sex offenders “in every community in the State.” The Court also acknowledged the Legislature’s understanding that appropriate housing placement includes consideration of such factors as the offender’s “accessibility to family members or friends or other supportive services” and the “availability of permanent, stable housing so as to reduce the possibility that the sex offender will be transient.”