State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports. No. 47 The People &c. ex rel. Danny Rivera, Appellant, v. Superintendent, Woodbourne Correctional Facility, et al., Respondents. Kerry Elgarten, for appellant. Frank Brady, for respondents. SINGAS, J.: At issue in this case is whether the Sexual Assault Reform Act’s (SARA) school grounds condition, as codified in Executive Law § 259-c (14), violates the Ex Post Facto Clause of the United States Constitution when applied to offenders whose crimes predated -1- -2- No. 47 the 2005 amendments to SARA. We hold that petitioner has not met his burden to demonstrate, by the clearest proof, that it does. I. In 1986, petitioner was convicted of two counts of murder in the second degree, two counts of attempted murder in the second degree, and one count of rape in the first degree, stemming from an incident where petitioner, acting in concert with four co-offenders, shot four individuals, killing two and wounding two others. Petitioner also raped one victim, a 25-year-old woman whom he later shot three times. Petitioner was sentenced to an aggregate prison term of 20 years to life. In April 2019, petitioner was granted an open parole release date of May 23, 2019. At his Sex Offender Registration Act (SORA) hearing held prior to his anticipated release, petitioner was adjudicated a level three sexually violent offender. The level three SORA designation, and the fact that petitioner is serving a sentence for an offense enumerated in Executive Law § 259-c (14), subjects petitioner to SARA’s school grounds condition, which effectively prohibits him from living within 1,000 feet of a school, or “any other facility or institution primarily used for the care or treatment” of minors (Executive Law § 259-c [14]). Petitioner was unable to locate SARA- compliant housing before his open release date. Because petitioner did not satisfy the mandatory parole condition, he remained in custody until he could locate suitable housing. In October 2020, petitioner filed a petition for a writ of habeas corpus, seeking immediate release on the grounds that SARA’s residency restriction, enacted after petitioner committed his crimes, violated the Ex Post Facto Clause of the Federal Constitution as applied to him. Supreme Court granted petitioner’s application and held -2- -3- No. 47 that application of both SORA and SARA to petitioner violated the Ex Post Facto Clause because the effect of the residency restriction in prolonging petitioner’s incarceration past his release date was punitive. The court ordered respondents, Woodbourne Correctional Facility Superintendent and the New York State Department of Corrections and Community Supervision (collectively “DOCCS”), to release petitioner to parole supervision and enjoined DOCCS from applying the school grounds condition to him. Petitioner remained incarcerated pursuant to stays of Supreme Court’s judgment until March 2021, at which time SARA-compliant housing became available and he was released to parole supervision. The Appellate Division unanimously reversed the judgment on the law (see 200 AD3d 1370 [3d …
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