Outgoing Dunkirk City Attorney Dan Gard has given the city a going away present of sorts, some free legal service. Gard, however, is not doing it just out of the goodness of his heart, but more from a sense of duty.
As city attorney, Gard is currently prosecuting a city resident who is a registered Level III sex offender for a violation of the City Code, a law Gard authored.
Richard Conti of Wash-ington Avenue was arraigned in City Court and charged with a Class A Misdemeanor for a Sept. 9 incident in which he was allegedly in violation of the law.
OBSERVER Photo by Gib Snyder
Dunkirk Councilman-at-Large James Muscato helped provide a quorum for council’s special meeting Monday morning. Muscato is still on the mend after a health scare earlier this month.
Dunkirk City Attorney Dan Gard
"The way I look at this is that there are times we are presented with opportunities to stand up, just because it's the right thing to do," Gard said after the meeting. "I'd like to thank the council, especially Jim Muscato and Bob George, who helped make this happen, as well as (Police Chief) Dave Ortolano, for the opportunity to do exactly that. This one, the reason I agreed to do it for free, is because this one isn't about cash, it's about kids, and I feel it's that important."
In a Dec. 15 letter to the mayor, Gard volunteered his services for a City Court trial which will likely be in January.
"As I will no longer be the City Attorney at the time, I am asking for the appointment as Special Prosecutor in order to continue to prosecute this matter," Gard wrote. "As I understand the financial position of the city, which has caused cuts in my office, I will be happy to represent the people of the city of Dunkirk in this matter for free. Although I am leaving my position of city Attorney, I am still the father of two small children and cannot in good conscience walk away from this situation without knowing I did all that could be done."
Gard said a court date has yet to be set but it would definitely be after Jan. 1. In the meantime, Conti is out on bail without further restrictions.
"Just because he's on bail he's presumed innocent until after the conviction," Gard explained. "We will definitely be asking for jail time. He could do up to a year, which on the A Misdemeanor is the maximum."
Muscato, George and Third Ward Councilwoman Rose Floramo were present to vote yes on the resolution. Second Ward Councilman Kevin Muldowney arrived too late to vote while First Ward Councilman A.J. Dolce was unable to attend the meeting. Prior to the meeting's start, Frey said Dolce indicated his support for the resolution in a phone call late last week.
The resolution hiring Gard, 90-2009, stated that Gard is, "the most qualified individual to prosecute this case given his ongoing current involvement and the fact he wrote the City of Dunkirk Sex Offender Law."
That law was adopted in June 2006 and restricts Level II and III sexual offenders from living, "in close proximity to areas where minors are required to be present or congregate for recreation purposes and pose an unacceptable level of danger."
The law also states: "The City of Dunkirk Common Council finds and determines that it is essential to assure residents of Dunkirk that the City government continues to make every effort to protect children from sex offenders," and that "This Council further finds and determines that it is in the best interests of the City of Dunkirk citizens to establish residency and proximity restrictions for sex offenders who have committed criminal sexual offenses against minors."
Restrictions under the law include:
A. A sex offender shall not reside within one thousand (1,000) feet of a public or private school, nursery school, pre-school, child care facility, playground, or park.
B. A sex offender shall not enter into any public or private school, nursery school, pre-school, child care facility, playground, or park.
The law does not require a person to move from a residence established prior to its enactment and provides for a, "fine not exceeding $1,000.00; or imprisonment for a term not exceeding one year; or both such fine and imprisonment.
The law states the term "sex offender" shall mean a person who has received a Level II or III designation as defined by the Sex Offender Registration Act contained in Article 6-C of the New York State Correction Law.
Conti is represented by Fredonia attorney Jason Schmidt.
According to Schmidt, the defendant contends that the arrest was unlawful under that section because Mr. Conti did not enter into a school building, as the language of the statute appears to prohibit.
"In any event, the statute is unconstitutionally vague in that it does not give proper notice of what constitutes prohibited conduct," Schmidt said.
Both sides are waiting for a ruling on the constitutional issue from City Court Judge Walter Drag.
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