Notable Decisions and Other News


Constitutional Challenge to Sexual Assault Reform Act

May 27, 2014

The Sexual Assault Reform Act (“SARA”) prohibits all level three sex offenders and all sex offenders whose victim was under 18 years old from knowingly going within 1,000 feet of any school or other facility that primarily serves children. SARA’s plain language restricts an offender’s movement. The Department of Corrections and Community Supervision (“DOCCS”), however, has interpreted the statute to be a residency restriction.

            Devine v. Annucci

Michael Devine (a pseudonym), is a level one sex offender based on a 2000 offense he committed when he had just turned 22, involving a 17-year-old victim. He has lived, without incident, in his current Brooklyn home for the past four years with his fiancee and her three children. After a long break, Mr. Devine’s supervision by DOCCS was reinstated in March of 2012. At first, DOCCS did not enforce the SARA restriction, but after some very negative press coverage about a level 3 sex offender residing near a school, they told Mr. Devine to leave his home because it was within 1,000 feet of a school. DOCCS placed Mr. Devine in a transitional residence – a location that was also not compliant with SARA because of its proximity to facilities that primarily serve children.

On April 9, 2014, Appellate Advocates and Brooklyn Defender Services filed an Article 78 petition in Supreme Court, Kings County, arguing that SARA is facially unconstitutional because it violates individuals’ substantive due process rights by impeding their rights to free association and intrastate travel.

Additionally, this petition argues that SARA is unconstitutional as applied to Mr. Devine because it violates his First Amendment right to freely associate with his own family and his right to be free from ex post facto punishment. The petition further asks that DOCCS be enjoined from prohibiting Mr. Devine from living in his home and from restricting his movement in and around New York City.

 Thus far, the Court has allowed Mr. Devine and his family to use pseudonyms to protect their privacy and has denied the Respondents’ motion to change the venue by moving the case to Albany County. The Court also granted Mr. Devine preliminary relief, allowing him to visit his home for two hours per day and move freely around Brooklyn. This initial decision has enabled him to move out of the transitional residence and reside with his mother. 

The Court is currently considering a renewed application for additional preliminary relief which would allow Mr. Devine to return to his home.

Argument was heard before the Hon. Yvonne Lewis on May 27, 2014.