People v Dinome

[*1] People v Dinome 2008 NY Slip Op 52269(U) [21 Misc 3d 1128(A)] Decided on November 13, 2008 Nassau Dist Ct Goodsell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 2, 2008; it will not be published in the printed Official Reports.

Decided on November 13, 2008
Nassau Dist Ct

The People of the State of New York, Plaintiff

against

Mark Dinome, Defendant



2008 NA 000635 S



REPRESENTATION:

McGinity & McGinity, P.C., Attorneys for Defendant, 1225 Franklin Avenue, Suite 325, Garden City, New York 11530, 516-227-6000; Joseph J. Ra, Esq., Town Attorney and Attorney for Plaintiffs, People of the State of New York, 1 Washington Street, Hempstead Town Hall, Hempstead, New York 11550, 516-489-5000.

David Goodsell, J.

Defendant moves pursuant to Criminal Procedure Law § 170.30(1)(c) and (f) and § 40.20 for dismissal of misdemeanor informations based upon summonses issued by the Town of Hempstead for failure to comply with three provisions of the laws governing buildings and zoning.

Originally, the Town of Hempstead charged the Defendant with maintaining an illegal use of the property, maintaining structures upon the property without a permit and maintaining signs without a permit on September 23, 2005. The later charge was withdrawn during the pendency of the action.

The property is located at 81 Verity Lane in Baldwin, New York. The Defendant purchased the property on March 29, 2005 from an entity controlled by a member or members of the family which owned what was known as "Eckhardt's Farm." The farm consisted of property on both sides of Verity Lane. Affidavits submitted in connection with this application to dismiss contend that a commercial enterprise existed across the street from the subject property. The subject property served as a site for storage of a wide variety of items sold at or through the store run by the Eckhardt family, as well as the storage of vehicles according to the Defendant. The Defendant, as indicated in his affidavit which is part of the moving papers, uses the subject property "for his nursery and landscaping business and has continued to sell firewood . . . " (Dinome Aff. para 6).

Procedurally, the initial case against the Defendant ended on April 17, 2008 when the People moved to dismiss the action pursuant to CPL § 170.30(1)(g). The Prosecutor at the time of the application to dismiss specifically moved to dismiss the action with [*2]prejudice citing an inability to proceed to trial.

Thereafter, the Prosecutor filed misdemeanor informations for violations of the Hempstead Building and Zoning Ordinance (hereinafter the "BZO"), Article 7 Section 63 (illegal use), Town of Hempstead Code Article 86 Section 9A (construction without a permit) and Town Code Article 24 Section 244 (signs without permits). While the new charges mirrored the original charges identically, the informations alleged the date of occurrence to be April 28, 2008.

Defendant now timely moves to dismiss the new informations contending double jeopardy prevents re-prosecution and that the property is a pre-existing, non-conforming use which bars continuing the action. The prosecution contends double jeopardy does not apply and the Defendant has not established a pre-existing non-conforming use.

ANALYSIS & DECISION

Defendant contends that the dismissal of summonses dated September 23, 2005 precludes the Plaintiff from being prosecuted for identical violations of the BZO and Town Code alleged to have been committed on subsequent date. While the Defendant argues that having been subjected to prosecution for illegal use of the property, BZO Article 7 Section 63, and maintaining a structure upon the property without a permit and Town of Hempstead Code, Article 86 Section 9A, the dismissal of the action by the Town Prosecutor prevents any further prosecution against the Defendant. The Defendant cites the dismissal "with prejudice" as indicated by the Prosecutor in his verbal motion to dismiss negates any right of recommencement which might otherwise exist under CPL § 170.35. See People v. Nuccio, 78 NY2d 102, 571 NYS2d 693 (1991).

However, the issue is not whether the dismissal took place with prejudice so much as whether the two sets of summonses charge the same offense as prohibited by CPL § 40.20. By definition, an offense for purposes of the CPL § 40.20 is "any conduct . . . which violates a statutory provision defining an offense . . . ". In the present case, Town of Hempstead Code, Article 16 Section 268 which applies to all summons issued in this case defines "each week's continued violation shall constitute a separate additional offense."

Clearly, the second set of summonses charge completely different events occurring on a different date based on the applicable provision of Article 16 Section 268. While the charge by Article and Section may be the same, the date is different. The distinction is critical both by definition in the Town of Hempstead Code and by logic. The very purpose of zoning code to promote the health, safety and welfare of individuals and businesses in the use of property would be rendered virtually meaningless, if through a dismissal or upon a plea of and subjected to a single fine, a property owner could then forever continue an illegal use or maintain an illegal structure with impunity. The ongoing nature of the offense permits the statutory scheme to treat a designated time period as a separate offense.

The dismissal of the initial charges by the prosecution is not without effect. The [*3]dismissal of the prior charges prevent the prosecution from seeking any penalty for any actions at least up through the date of the dates charged in the dismissed first informations. See People v. Fletcher Gravel Co., Inc., 82 Misc 2d 22, 368 NYS2d 392 (Cty Ct, Onondaga Cty 1978). However, the application to dismiss based upon the application of CPL § 40.20 is denied.

The Defendant further contends that a legal impediment requires dismissal of the action against him. The Defendant claims the use of the property is a pre-existing non-conforming use.

The Town of Hempstead Building Zone Ordinance, Article II § 3, defines a legal non-conforming use as one which "at the time such use commenced, was maintainable as a matter of right under the statutes, ordinances and general rules of law then in effect in the Town of Hempstead." Receiving legal non-conforming status may be accomplished through the submission of affidavits of sufficient evidentiary proof which establishes the legal non-conforming status as determined by the Manager of the Building Department. (BZO Art. II, §§ 6 & 7).

Additionally, the Board of Zoning Appeals can determine the existence of a legal non-conforming use if an appeal is sought from the denial of a permit or for a determination of a decision of the Manager of the Building Department. (Town of Hempstead Law § 267).

Finally, the decision of the Zoning Board is subject to appeal and review of the Supreme Court under CPLR § 7801 et. seq.

In the present case, no evidence of any prior determination has been set forth that the use of the subject property is a legal non-conforming one as defined by statute. A prior determination of a legal non-conforming status would be a legal impediment to prosecution.

A legal impediment is finding that as a matter of law precludes a finding of guilt. People v. Amerada Hess Corp., 3 Misc 3d 134(A), 787 NYS2d 679 (App. Term, 9th & 10th Jud. Dists. 2004). Instead of producing competent evidence of a prior determination or competent evidence adduced at a hearing which establishes a legal impediment, the Defendant offers two affidavits, one from the prior owner and the second from a long standing member of the community.

Neither of the two affidavits rises to the level of establishing a legal impediment or jurisdictional bar which prevents conviction. The affidavits provide some factual statements but which are not binding nor determinative of the issue of non-conforming use at the pre-trial stage of the current proceedings. The statements are those of individuals without binding authority unlike the Manager of the Building Department, the Board of Zoning Appeals or the Supreme Court in an Article 78 proceeding. [*4]

Defendant relies heavily upon the case of People v. Braun Brothers Brushes, 15 Misc 3d 1030, 838 NYS2d 408 (Justice Ct., Vill. of Valley Stream 2007). The court in Braun Brothers concluded as a matter of law a permit issued in 1952 validated the non-conforming use and that a mercantile permit issued by the municipality precluded it from prosecuting a landowner for not having a certificate of occupancy.

Here, unlike in People v. Braun Brothers, supra , nothing approaching a legal validation of the non-conforming use is alleged. The Defendant offered no proof that he sought a determination of the legality of the non-conforming use from the Building Department, nor from the Board of Zoning Appeals. Instead, the submission of two broadly drawn affidavits which at best suggest the property in question has been used for a variety of purposes at various times does not rise to the level of a legal or jurisdictional impediment.

Counsel for the Defendant incorrectly asserts that the affidavits submitted sufficiently raise an "affirmative defense" which must be refuted beyond a reasonable doubt by the prosecution. To the extent People v. Braun Brothers contains language that a summary determination of a non-conforming use is permitted [FN1], this Court declines to follow such a procedure. Criminal Procedure Law § 170.30 does not provide for summary determinations, unlike in civil practice where dismissal is routinely sought and granted under CPLR 3212. The language employed by the court in People v. Braun Brothers which suggests a weighing of the evidence in determining whether a legal impediment exists is contrary to the notion that the determination of facts and the validity of a defense takes place at a criminal trial even of a zoning matter being prosecuted as a misdemeanor. People v. Burns, 115 Misc 2d 897, 454 NYS2d 807 (Oswego City Ct 1982), People v. Waring, 110 Misc 2d 392, 441 NYS2d 872 (Oswego City Ct 1981). Cf, People v. Benitez, 167 Misc 2d 99, 637 NYS2d 590 (Rochester City Ct 1995).

The determination of the existence of the legality of a non-conforming use is multifaceted. Expansions of a non-conforming use, an abandonment of a non-conforming use, or whether a non-conforming use even applies to a parcel of property creates issues best resolved through a full vetting and consideration at a trial. Town of Clarkstown v. M.R.O. Pump & Tank, Inc., 32 AD3d 925, 822 NYS2d 576 (2nd Dept 2006); Garcia v. Holze, 94 AD2d 759, 462 NYS2d 700 (2nd Dept 1983); Gilmore v. Beyer, 46 AD2d 208, 361 NYS2d 739 (3rd Dept 1974).

Municipalities have a variety of both civil and criminal remedies to enforce compliance with building and zoning codes. Election of one means to proceed does not bar any other. See Inc. Village of Westbury v. Samuels, 46 Misc 2d 633, 260 NYS2d 369 (Sup Ct, Nassau Cty 1965). However, election of one remedy for the enforcement requires [*5]the adherence to the procedural and statutory formalities of that forum.

The motion to dismiss on grounds of the existence of a legal or jurisdictional impediment is also denied for the reasons stated.

This matter is set down for trial on January 8, 2009 at 9:30 a.m., District Court of Nassau County, 2nd District Criminal Part, 99 Main Street, Hempstead, New York 11501.

This constitutes the decision and order of the Court.

/s/

DISTRICT COURT JUDGE

Dated:November 13, 2008

CC:McGinity & McGinity, P.C.

Joseph J. Ra, Esq., Town Attorney

DG/mp Footnotes

Footnote 1:The opinion states, "[t]he court is satisfied that the Defendant has raised a sufficient defense of a prior non-conforming use of a substantial nature. It is noted that the People have been unable to sufficiently rebut this presumption now that it has been set forth."