A
73-YEAR-OLD pervert was slapped with a five-year prison term yesterday
for molesting a young girl placed in his clutches by her twisted father.
As
Ariel Berlin of the upper West Side pleaded for leniency, an aunt of
the 5-year-old victim shouted: "You are a sick, pathetic, disgusting old
man! I hope you die and rot in jail and in hell!"
Berlin had met the child at the lower East Side home of her 28-year-old cross-dressing father.
Investigators
said Berlin and the dad had sex in the apartment in July. During the
assignation, Berlin noticed a picture of the daughter on a wall and told
the father he wanted to meet her, they said.
____________________________________________________________________________________
Parole Application
Supremem Court of New York - April 11, 2012
http://www.courts.state.ny.us/Reporter/3dseries/2011/2011_21139.htm
In the Matter of Ariel Berlin, Petitioner,
v
Andrea Evans, Chief Executive Officer, New York State Division of Parole, Respondent. |
Supreme Court, New York County, April 11, 2011
APPEARANCES OF COUNSEL
Legal Aid Society (Robert C. Newman of counsel), for petitioner. Eric T. Schneiderman, Attorney General (Inna Reznik of counsel), for respondent.
{**31 Misc 3d at 920} OPINION OF THE COURT
Anil C. Singh, J.
This is a CPLR article 78 proceeding. Petitioner challenges
respondent New York State Division of Parole's application to him of
Executive Law § 259-c (14), which prohibits individuals who are on
parole for certain categories of sex crimes from residing within 1,000
feet of schools where children under the age of 18 are enrolled.
Petitioner contends that, as applied to his circumstances, the statute
is an unconstitutional ex post facto law because he committed the
criminal offense before the effective date of the statute and the
statute increases the penalty for the crime by banishing him from
Manhattan. Respondent opposes the petition.
For more than 40 years, petitioner Ariel Berlin has resided at 250 West 85th Street in Manhattan. He is 77 years old.
In July 2005, Berlin placed an ad on a telephone dating service
seeking homosexual encounters. Berlin met a man who invited Berlin to
come to his apartment in the East Village to "play" with him and his
five-year-old daughter.
Berlin went to the apartment on July 14, 2005. The man came to
the door dressed in women's clothing and holding his daughter's hand.
Berlin got undressed and touched the child's vagina with his hand as the
father watched.
Within a few days, Berlin told his therapist what he had done. On July 21, 2005, the [*2] therapist submitted a law enforcement referral form to the authorities describing the crime.
The police arrested Berlin on July 29, 2005.
Following a jury trial, petitioner was convicted on September 28,
2006, of sexual abuse in the first degree. He was sentenced to a
five-year term of imprisonment, followed by three years' postrelease
supervision. The verdict and sentence were affirmed on appeal (People v Berlin, 39 AD3d 351 [1st Dept 2007], lv denied 9 NY3d 840 [2007]).
While he was in prison, Berlin continued paying rent for his
apartment, and he planned to return to his apartment as soon as he was
released from prison. {**31 Misc 3d at 921}
Prior to his release, Berlin was adjudged a level one, low-risk
sex offender. Two days before his release, however, Berlin was told that
he would not be allowed to live in his apartment, or an alternate
address he submitted, because each was located within 1,000 feet of a
school. A facility parole officer told Berlin that this was because of
"SARA's law."
On October 1, 2010, petitioner was released to parole
supervision. At the time of his release, Berlin promised to abide by 11
special conditions of parole release, including promising to abide by
the mandatory condition imposed by the Sexual Assault Reform Act,
chapter 1 of the Laws of 2000 (SARA).
Petitioner also signed a mandatory condition of release to parole supervision form. The form states in part:
"I, Ariel BERLIN, acknowledge that under the provisions
of my Conditions of Release, the following Mandatory Condition has been
imposed upon me and that this Mandatory Condition will remain in effect
until the termination of my legal period of supervision (10-01-13)
unless otherwise amended in writing by the Division of Parole.
"I will not knowingly enter upon any school grounds [School
grounds are defined as an area in, on or within any and all buildings,
structures, athletic playing fields, playgrounds or land, contained
within the property line of a public or private elementary, parochial,
intermediate, junior high, vocational or high school or any area
accessible to the public (sidewalks, streets, parking lots, parks,
playgrounds, stores and restaurants) located within 1000 feet of the
property line of any such school or any parked car or other vehicle
located within 1000 feet of the property line of such school] or any
other facilities or institutions primarily used for the care and
treatment of persons under the age of eighteen, unless
"I am a registered student, participant, employee,
contracted employee or have a family member enrolled in one of the
described institutions or facilities and
"Have written permission from my Parole officer." (Petitioner's exhibit F.)
In addition, petitioner read and signed a special conditions of
release to parole supervision form in October 2010. The form
acknowledged Berlin's understanding that he was [*3]not permitted to reside within a school zone as defined above. He acknowledged{**31 Misc 3d at 922}
further that if his current residence conflicted with this mandatory
condition, he must move to a new residence that complied with this
mandatory condition within one day.
Petitioner was directed to report to the Bellevue Men's Shelter
upon his release from prison. When he arrived at the shelter, the
shelter refused to accept him. As this was a Friday afternoon, and he
had no other place to go, he went home, accompanied by his friend and
former neighbor, Dr. Steven Rapaport, who promptly notified his parole
officer of the situation.
The following Monday, Berlin reported as directed to his parole
officer. He said that he would agree to remain in his apartment at all
hours and arrange for friends to deliver groceries and mail to him, so
that he would never need to leave the apartment. His parole officer said
that would not be acceptable and again ordered Berlin to reside at the
shelter.
Once again, the Bellevue Men's Shelter refused to admit him, saying that he was not homeless.
On October 6, 2010, Berlin visited his parole officer again.
Berlin was required to sign a "Special Conditions of Release to Parole,"
which stated that he was not permitted to reside at his apartment or
the alternate address, 206 West 106th Street, because each location was
within 1,000 feet of school property (petitioner's exhibits G, H).
On October 7, 2010, the parole officer required Berlin to sign a
more detailed "Special Condition of Release," which stated that Berlin
was not to reside in his apartment "under any circumstances," for the
same reason (petitioner's exhibit I).
While seeking an alternative address that complied with the law,
Berlin was allowed to stay temporarily with his friend Ed Belsky, and
his roommate, at 2793 Eighth Avenue in Manhattan. However, Mr. Belsky
did not allow Berlin to stay there more than a few days, nor was that
address accepted by his parole officer as a longer-term residence.
The reentry unit of the Division of Parole tentatively located an
address for him in the East New York neighborhood of Brooklyn, and
Berlin was willing to rent an apartment there as an alternative to
violating his parole, but the Division disapproved the address before he
could move in. He was told that the building was more than 1,000 feet
from a school but was disapproved because a child lived in the building.
Berlin was then allowed to live for a short while with his friend Roberta Hodes at 420 East 23rd Street in Manhattan{**31 Misc 3d at 923}
while he looked for other accommodations that complied with the law.
However, Ms. Hodes was unable to accommodate him for more than a few
days, nor was this address approved by his parole officer as a
longer-term residence.
Berlin also proposed a temporary address at a YMCA, near the
parole office to which he was to report, but this was rejected because
of its proximity to schools or children.
On October 20, 2010, petitioner was admitted to Mount Sinai Hospital due to an illness. He was discharged on October 25, 2010.
Petitioner was admitted on October 26, 2010, to Bellevue Men's
Shelter, operated by the New York City Department of Homeless Services.
Two days later, he was admitted to Bellevue Hospital because he was sick
again. He remained at the hospital until November 9, 2010, when he was
transferred to University Nursing Home in the Bronx.
Petitioner continues to reside at the nursing home. His landlord
has instituted eviction proceedings based on respondent's direction that
petitioner is not permitted to return to his apartment until his parole
ends. Petitioner has retained counsel to attempt to prevent the
eviction [*4]until the court has ruled on the merits of the instant petition.
Petitioner commenced the instant article 78 proceeding by filing a
petition on October 15, 2010. The petition asserts that he should be
allowed to return to his Manhattan apartment for the following reasons.
First, all or nearly all residential addresses in New York County
lie within 1,000 feet of the real property line of a school. Therefore,
if the statute is applied to prevent Berlin from living in his
apartment, or anywhere else within 1,000 feet of a school, he is
effectively banished from New York County, where he has spent nearly his
entire life.
Second, application of the statute to petitioner violates his
federal and state constitutional rights to substantive due process.
Third, application of the statute to Berlin violates his fundamental
right to travel. Fourth, as applied to petitioner, the statute operates
as an unconstitutional ex post facto law. Fifth, petitioner contends
that it would be possible for him to reside in his apartment under
certain conditions without violating the statute.
Discussion
The Sexual Assault Reform Act was enacted in 2000. It is codified in part as section 259-c (14) of the Executive Law.{**31 Misc 3d at 924}
At the time of the commission of the offense, the statute
prevented paroled sex offenders whose victims were children from
entering "school grounds" as defined in "paragraph (a)" of Penal Law §
220.00 (14). This meant that such offenders could not enter "in or on or
within" any building, structure, athletic field, playground or "land
contained within the real property boundary line" of a public or private
school.
Paragraphs (a) and (b) of Penal Law § 220.00 (14) define "school grounds" as:
"(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."
It is clear that the drafters of SARA did not intend to incorporate "paragraph (b)" of section 220.00 (14).
Section 259-c of the Executive Law enumerates the specific
functions, powers and duties of the Division of Parole. A reference to
"paragraph (a)" was deleted from Executive Law § 259-c (14) by Laws of
2005, chapter 544, enacted August 19, 2005—approximately one month after
petitioner's crime—and taking effect on September 1, 2005.
Executive Law § 259-c (14), as amended, states:
"notwithstanding any other provision of law to the
contrary, where a person serving a sentence for an offense defined in
article one hundred thirty, one hundred thirty-five or two hundred
sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the
penal law and the victim of such offense was under the age of eighteen
at the time of such offense or such person has been designated a level
three sex offender pursuant to [*5]subdivision six of section one hundred sixty-eight-l of the correction law, is released on parole or conditionally released pursuant to subdivision one or two of this section,{**31 Misc 3d at 925}
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, provided however, that when such sentenced
offender is a registered student or participant or an employee of such
facility or institution or entity contracting therewith or has a family
member enrolled in such facility or institution, such sentenced offender
may, with the written authorization of his or her parole officer and
the superintendent or chief administrator of such facility, institution
or grounds, enter such facility, institution or upon such grounds for
the limited purposes authorized by the parole officer and superintendent
or chief officer. Nothing in this subdivision shall be construed as
restricting any lawful condition of supervision that may be imposed on
such sentenced offender."
By deleting the reference to "paragraph (a)," the Legislature
incorporated Penal Law § 220.00 (14) in its entirety into Executive Law §
259-c (14) and effectively provided that the parole offenders
referenced by the statute are subject to mandatory parole conditions
requiring them to "refrain from knowingly entering into or upon" "any
area accessible to the public located within one thousand feet of the
real property boundary line comprising any [public or private
elementary, parochial, intermediate, junior high, vocational, or high]
school."
In the instant proceeding, it is undisputed that petitioner's
apartment is located within 1,000 feet of "school grounds" as defined by
the statute. If he were to return to his apartment before the end of
his parole in 2013, he would thus be violating the geographical
restriction of the statute as well as the special and mandatory
conditions of his parole. He would be subject, therefore, to
reincarceration.
Counsel for petitioner argues that, as applied to petitioner, the
2005 amendment to SARA operates as an unconstitutional ex post facto
law. The amendment adding the 1,000-foot school "buffer zone" to
Executive Law § 259-c (14) was enacted subsequent to the commission of
petitioner's offense. Therefore,{**31 Misc 3d at 926}
if the amendment is "punitive" in purpose or effect, its application to
petitioner makes it an unconstitutional ex post facto law. Petitioner
asserts that there are so many schools as defined by the statute in
Manhattan that, in effect, the statute banishes such parolees from
Manhattan, and banishment is historically a form of punishment.
In response, the Division of Parole argues that the residency
requirement does not violate the Ex Post Facto Clause, for the
proscription was not done to punish petitioner. Rather, it is directly
related to limiting his ability to reoffend while on parole. Respondent
asserts that the intent of the statute is not punitive, but to protect
public safety. Respondent points out that other jurisdictions have
upheld the subsequent imposition of a residency requirement on paroled
sex offenders. Moreover, the law does not banish petitioner from all of
New York City because he is currently able to reside in the Bronx.
The Ex Post Facto Clause of article I, § 10 of the Constitution
prohibits the states from enacting laws that increase punishment for
criminal acts after they have been committed. (See generally Calder v Bull,
3 Dall [3 US] 386, 390 [1798].) To determine whether a statute violates
the Ex Post Facto Clause by imposing such punishment, we must apply [*6]the framework outlined in Smith v Doe
(538 US 84, 92 [2003]), where the Supreme Court considered an ex post
facto challenge to an Alaska statute requiring sex offenders to
register. Under that framework, we must first "ascertain whether the
legislature meant the statute to establish 'civil' proceedings" (id.
[some internal quotation marks omitted]). If the legislature intended
criminal punishment, then the legislative intent controls the inquiry
and the law is necessarily punitive (id.). If, however, the
legislature intended its law to be civil and nonpunitive, then we must
determine whether the law is nonetheless "so punitive either in purpose
or effect as to negate" the state's nonpunitive intent (id.
[internal quotation marks omitted]). "[O]nly the clearest proof" will
transform what the legislature had denominated a civil regulatory
statute into a criminal penalty (id.).
The slim legislative history—as cobbled together from the papers—is as follows:
According to petitioner, the legislation proposing to establish
the 1,000-foot "buffer zones" around schools was introduced six days
before the end of the 2005 legislative session as 2005 NY
Senate-Assembly Bill S479-A, A8894. The law was enacted on{**31 Misc 3d at 927}
the last day of the session without any public hearing or opportunity
for public comment. The Assembly Sponsor's Memorandum in Support states
that the bill's "PURPOSE" was to prohibit certain sex offenders "from
entering upon school grounds or other facilities where the individual
has been designated as a level three sex offender." The "SUMMARY OF
PROVISIONS" then discusses how level three high-risk offenders must
"refrain from entering upon school grounds or other facilities where
children are cared for." The memorandum does not mention or otherwise
discuss the addition of the residency requirement or the alteration of
the cross-reference to the Penal Law, which had the effect of imposing a
new rule that the affected offenders could not live within 1,000 feet
of school grounds. According to petitioner, the legislative history
supports the lawmakers' intent to extend to level three offenders the
existing restriction governing offenders with child victims, but the
history is completely silent with respect to the reasons for the
imposition of the 1,000-foot barrier or "buffer zone."
In contrast, respondent contends that the Legislature did not
view the 2005 amendment to Executive Law § 259-c (14), changing the
definition of "school grounds" to include the entirety of Penal Law §
220.00 (14) as punitive, but, rather, as a protective measure to protect
"vulnerable populations, children, against sex offenders." According to
respondent, the Memorandum of the Assembly Rules Committee stated,
"There is a need to prohibit those sex offenders who are determined to
pose the most risk to children from entering upon school grounds or
other areas where children are cared for" (see Bill Jacket, L 2005, ch 544, 2005 NY Legis Ann, at 321).
Based on the legislative history, we find that the Legislature
had two specific purposes in mind in passing the legislation. On the one
hand, the law is intended to protect children. On the other hand, the
law is also intended to increase punishment against convicted sex
offenders. It is telling that the definition of "school grounds" is
contained in the Penal Law. On its face, the law applies only to
individuals who are on parole, and parole is a form of punishment.
Likewise, Executive Law § 259-c (14) deals exclusively with parole. By
contrast, the Court of Appeals has held that the Sex Offender Management
and Treatment Act (SOMTA) "is not a penal statute designed to punish a
past crime, but a remedial one designed to prevent a future crime" (People v Harnett, 16 NY3d 200, 206 [2011]). Unlike the legislation at issue in the present matter, SOMTA is codified in the Mental Hygiene Law.{**31 Misc 3d at 928}
[*7]
Even if we assume for the sake of
argument that the purpose of the statute is purely civil in nature, the
statute as applied to petitioner is clearly punitive in effect.
It is undisputed that petitioner's apartment in Manhattan falls
within the geographic restriction of the statute. Moreover, petitioner
has convinced the court that, based on the number of places fitting the
definition of "school grounds" as defined by the statute, he has
effectively been banished from Manhattan, where he has lived most of his
life. The Division of Parole disapproved a proposed residence in
Brooklyn. In addition, the affidavit of a parole officer hints that even
petitioner's current placement in the Bronx is problematic.
Richard Rosado, a Senior Parole Officer employed by the Division
of Parole, acknowledged in a sworn affidavit that "there have been
difficulties with locating a residence for Plaintiff [sic] that
complies with S.A.R.A." (Rosado aff, at 2, para 5). Rosado conducted a
search to determine whether University Nursing Home in the Bronx
complied with the statute. However, based on the facts in his affidavit,
it is unclear whether petitioner's current residence complies with the
law.
Rosado stated that a computer search
"did not identify any schools within a 1000 foot radius
other than ABC Training Center, located at 1 East Fordham Road, Bronx,
New York. However, that school, which has a website at
www.abctrainingcenter.net, is a career training school for Certified
Nurse Aides, Home Health Aides, Medical Assistants, bartenders, and
assorted technical fields. Petitioner's residence is within 1000 feet of
ABC training center. Therefore, since it is not a school that is likely
to have students under the age of eighteen, Petitioner's residence
within 1000 feet of ABC training center would not violate the S.A.R.A.
requirements."
In light of the parole officer's qualifying language that the school
is not "likely" to enroll students under the age of 18, there is reason
to doubt whether petitioner's current location really complies with
SARA.
Petitioner cites a case from a sister state that is highly instructive.
In Commonwealth v Baker (295 SW3d 437 [Ky 2009]), the
Supreme Court of Kentucky analyzed an amended statute setting forth
residency restrictions for registered sex offenders.{**31 Misc 3d at 929}
The court held that the legislature intended the amended statute to be a
civil, nonpunitive, regulatory scheme. The court found that the statute
was excessive with respect to the nonpunitive purpose of public safety,
however, because the law failed to make any type of individualized
assessment as to whether a particular offender is a threat to public
safety. The court wrote:
"We believe that the magnitude of the restraint involved
in residency restrictions is sufficient for a lack of individual
assessment to render the statute punitive.
"The record before us does not reveal whether or not [the
offender] might be a threat to children and to public safety. But this
is exactly why [the statute] is excessive. Given the drastic
consequences of Kentucky's residency restrictions, and the fact that
there is no individual determination of the threat a particular
registrant poses to public safety, we can only conclude that [the
statute] is excessive with respect to the nonpunitive purpose of public
safety." (Baker, 295 SW3d at 446 [internal quotation marks omitted].)
[*8]
Here—as in Baker—there is a no
individual assessment whatsoever. Petitioner is 77 years old and
suffers health problems. He is a low-risk, level one sex offender, and
this is his first offense. It is clear that he poses a minimal threat to
children and to public safety. Under such circumstances, the court
finds that the lack of individual assessment renders the statute
punitive.
In conclusion, the court finds that the statute as applied to
petitioner violates the Ex Post Facto Clause of the Constitution. We
note that courts in four other states have found that the application of
similar statutes to sex offenders violated prohibitions on ex post
facto laws (see F.R. v St. Charles County Sheriff's Dept., 301 SW3d 56 [Mo 2010]; Commonwealth v Baker, supra; State v Pollard, 908 NE2d 1145 [Ind 2009]; and Mikaloff v Walsh, 2007 WL 2572268, 2007 US Dist LEXIS 65076 [ND Ohio 2007]).
Since the ex post facto issue is dispositive of the proceeding, we do not reach petitioner's remaining arguments.
Accordingly, petitioner is permitted to reside in his apartment
for the remainder of his parole, subject to appropriate conditions to
protect children and public safety within respondent's discretion.{**31 Misc 3d at 930}
For the above reasons, the petition is granted, and the matter is
remanded to the New York State Division of Parole for action consistent
with the court's decision.
