People v Centro Am. Corp.

[*1] People v Centro Am. Corp. 2009 NY Slip Op 52733(U) [26 Misc 3d 1219(A)] Decided on January 22, 2009 Just Ct Of Vil. Of Westbury, Nassau County Liotti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2009
Just Ct of Vil. of Westbury, Nassau County

The People of the State of New York,

against

Centro America Corporation, Defendant.



7892-2009



FOR THE VILLAGE:

DWIGHT D. KRAEMER, ESQ.

Village Attorney and Prosecutor

342 Post Avenue

Westbury, NY 11590

(516) 334-1700

FOR THE DEFENDANT:

DANIEL A. THOMAS

Attorney for the Defendant

333 East 53rd Street - Suite 3A

New York, NY 10022

(212) 307-0200

Thomas F. Liotti, J.

The defendant is charged with violating a noise ordinance of the Village of Westbury Code, section 168-3B. Specifically, the defendant, the owner of a local taxi company, is accused of creating a noise disturbance on two separate occasions where one of its cars repeatedly honked its horn while waiting for a customer. In each case, a witness to the incident called the police who then issued an appearance ticket to the driver of the vehicle. The defendant now moves this court to dismiss the charges on the grounds that (i) the accusatory instruments are defective, and, (ii) section 168-3B of the Village of Westbury Code is unconstitutionally vague.

Sufficiency of the Accusatory Instrument

The defendant moves to dismiss the charges on the grounds that the two appearance tickets issued to the defendant were defective. An appearance ticket is not the equivalent of an accusatory instrument. See C.P.L. 1.20(1); People v. Giusti, 176 Misc 2d 377, 380, 673 NYS2d 824, 826 (NY City Crim. Ct. 1998). Rather, an appearance ticket is defined as, a written notice issued by a public servant ... requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein. See C.P.L. 1.20(26); [*2]see also Morris et al., Village, Town and District Courts in New York, § 3:157 (Thomson West, 1995). An appearance ticket does not commence a criminal action, and a criminal action cannot be dismissed because of a defective appearance ticket. Instead, a defect in an appearance ticket can only serve as a defense for failing to appear before the court. See Preiser, McKinney Practice Commentary, CPL § 150.10 (2004); see also Giusti, 176 Misc 2d 377, 673 NYS2d 824 (NY City Crim. Ct. 1998); see also Morris et al.,Village, Town and District Courts in New York, § 3:159 (Thomson West, 1995). Since the defendant did not fail to appear before the Court on the appropriate date, any defect in the appearance ticket is irrelevant.

After a police officer or public servant issues an appearance ticket, the officer must file a sufficient accusatory instrument with the court on or before the date that the defendant is to appear. See C.P.L. 150.50(1); see also Morris et al., Village, Town and District Courts in New York, § 3:16 (Thomson West, 1995). Here, the prosecution filed two superseding informations in the form of Summons No. 7892 and Summons No. 7893. Both summonses were filed before October 15, 2009, the date that the defendant appeared in Court. Each summons, along with the supporting depositions attached to them, contain all the elements required of an accusatory information. See C.P.L. 100.40 (an information is facially sufficient when non-hearsay allegations would, if true, establish every element of the offense charged). As a result, the defendant s motion to dismiss the charges based on insufficient accusatory instruments is denied.

Void for Vagueness

The defendant moves to dismiss the charges on the grounds that Section 168-3B of the Village of Westbury Code is unconstitutionally vague. Section 168-3B reads, Horns and signaling devices. The sounding of any horn, signaling device or alarm (except as a danger warning, pursuant to §375 of the Vehicle and Traffic Law of the State of New York) which results in a harsh or loud sound or repetitive sounds for any unreasonable or unnecessary period of time, so as to create a noise disturbance.

Courts have developed a two-part test for determining whether a law is void for vagueness. First, the statute must be sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.See People v. Nelson, 69 NY2d 302, 307, 514 NYS2d 197, 506 NE2d 907 (1987); see also Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Second, the statute must provide law enforcement officials with clear standards for enforcement. See Nelson, 69 NY2d 302. In other words, the language of the statute must clearly state exactly what conduct is illegal. Also, the statute must clearly state how law enforcement officials are to determine when the law is being violated, leaving no discretion in their hands.

The Doctrine of Lenity, like the Constitutional Doctrine of Void for Vagueness, also aims to clarify criminal statutes and give citizens clear standards of legal and illegal conduct. See Note, Textualism As Fair Notice, 123 Harv. L. Rev. 542, 550 (2009). The Rule of Lenity states that ambiguous criminal laws should be interpreted in favor of the defendant. This rule ensures that a defendant cannot be found guilty of violating a statute that does not give fair notice of what conduct is illegal and what the punishment is for a violation. See United States v. Santos, 128 S. Ct. 2020, 2025 (2008). If a statute is found to be unclear or ambiguous, it must be interpreted in a way that would give the defendant fair notice of the law. McBoyle v. United States, 283 U.S. 25, 26, 51 S. Ct. 340, 341 (1931) (Holmes, J.). [*3]

The defendant's motion to dismiss raises legitimate questions about the constitutionality of the statute in question. The statute does not clearly define what would be considered an unreasonable or unnecessary period of time. Relying on this reasonableness standard gives citizens virtually no guidance on how to conduct themselves in accordance with the ordinance. In fact, it is not difficult to imagine a situation in which two reasonable people disagree on what would constitute an unnecessary use of a horn. It is entirely possible that the two witnesses who reported the defendant to the police are overly sensitive to noise; however, the statute provides no safeguards for such a situation.

Further, the vagueness of the statute provides police with no clear standards for enforcement. In fact, the police in this case did not hear the defendant's horn in either instance. The witness simply reported what they believed to be an excessive noise, and the police officer automatically issued an appearance ticket based on this complaint. The statute not only fails to provide the police with clear enforcement standards, it effectively allows for enforcement by any person who hears what they believe to be an unnecessary honking of a horn.

Despite this Court's hesitation to uphold the statute in question, it is compelled to do so by the Doctrine of Stare Decisis. The principle of stare decisis is simply that, when a principle or point of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases. William M. Lile et al., Brief Making and the Use of Law Books 321 (3d ed. 1914). The noise ordinance at issue has been previously upheld by a higher court. People v. Lord, 7 Misc 3d 78, 796 NYS2d 511 (NY Sup. App. Term 2005). However, the ruling of the appellate court may be the result of deep rooted problems in our judicial system.

The Village and Town Courts of the State of New York are known as the Courts closest to the People. In Nassau County, unlike other counties in this State, including neighboring Suffolk County, our Village Courts do not preside over misdemeanors or felonies even for arraignment purposes. That function has been superseded by the establishment of a District Court in Nassau. See People v. Ventura, 3 Misc 3d 1107(A), 787 NYS2d 680 (NY Just. Ct., 2004). The Village Courts of Nassau preside over alleged violations of the New York State Vehicle and Traffic Laws and of the Local Laws of the Village such as Building Code cases. Convicted violators may be subject to up to fifteen days in jail. In nearly twenty years as a Village Justice, I have sentenced only one person to jail. See People v. Shumake, QDS 76601750 (Village Just. Ct. Westbury, 1999) (defendant sentenced to 15 days in jail for repeatedly driving without a license and failing to pay fines).

The problem of defendants being unrepresented by counsel in violation cases, where they face the possibility of jail, is acute. The same problem occurs on appeal. When Gideon v. Wainwright, 372 U.S. 335 (1963) was decided, the Supreme Court determined that any indigent person accused of a crime is entitled to an attorney. Our State, in response to Gideon, then enacted Article 18B of the County Law which provides for the assignment of counsel to indigent defendants accused of crimes. This does not include those accused of violations facing the mere possibility of jail. See Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764 (2002).

In Nassau, the defendants usually appear in this Village Court and others, pro se, or [*4]without counsel. Although faced with the possibility of jail, high fines, or points on their drivers licenses, which may then lead to suspensions or revocations of driving privileges, they do not retain counsel either because they cannot afford it or because they view the charges against them as so inconsequential that they can handle it on their own. In most cases they leave this Court and other Village Courts unscathed because in most cases the charges are relatively minor, our prosecutor is benevolent and knowledgeable and this Court bends over backwards to be of assistance to defendants in order to insure that their Constitutional rights are upheld.

Once their cases are resolved, either by a plea, decision on a motion, or a non-jury verdict (we do not have jury trials in this Local Criminal Court), the parties may appeal. But once again, if the prosecutor appeals, defendants may choose not to retain counsel or to otherwise contest the issues being presented to an appellate court. The prosecutor then presents the appeal, unopposed, usually resulting in an easy, uncontested win for the People.

In this Court's opinion, this then becomes one of the scandals affecting Town and Village Courts statewide which can be added to the other inequities present in some of these Courts. See William Glaberson, Broken Bench, NY Times, September 25, 2006, available at http://www.nytimes.com/2006/09/25/nyregion/25courts.html?scp=1 & sq=Broken%20Bench & st=cse; see also, William Glaberson, Overhaul of New York s Small-Town Courts Looks Unlikely, NY Times, January 8, 2010, at A18. These issues are recurring and cannot be resolved by a single report or Commission or simply by throwing money into these Courts. Systematic changes are needed where the Sixth Amendment right to counsel is effectuated.

This Court has previously written of the Court s Constitutional obligations to assign counsel to indigent defendants where there is a mere possibility of jail. See People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33 (Case of first impression where the Court determined that Village courts have a constitutional obligation to assign counsel to indigent defendants when there is a mere possibility of jail; see also Miller, Anthony, Village Court Ruling: Assigned Counsel Ordered For Zoning Violation Defendant, The Attorney of Nassau County, March, 1999 at 6; see also Fasano, H. Raymond, Feature Article, People v. Daniel Louis: Right to Counsel In Village Justice Court, Mouthpiece (a publication of the New York State Association of Criminal Defense Lawyers) Vol. 12, No. 3, May/June, 1999 at 25 and Liotti, Thomas F., Does Gideon Still Make a Difference?, New York City Law Review, Edited by the students of The City University of New York School of Law, a Journal in the Service of Human Needs, Volume Two, Summer, 1998, Number Two, pp. 105-37. See Podgor, Ellen S., Reviews in Review, Gideon in New York, The Champion, a publication of the National Association of Criminal Defense Lawyers, June, 1999 at 48. This is a review of Mr. Liotti s Law Review article by Prof. Podgor of the Georgia State University College of Law.

The People here rely upon the Appellate Term's holding in People v. Lord, 7 Misc 3d 78, 796 NYS2d 511 (NY Sup. App. Term 2005). In that case, the defendant was charged with violating a village noise ordinance after adjoining landowners complained about music played through an amplifier. The defendant was not represented by counsel. He did not contend that the ordinance limited his freedom of expression. This Court sua sponte granted dismissal, declaring the ordinance to be an unconstitutional violation of the First, Fourth and Fifth Amendments of the United States Constitution. The applicable section of the noise ordinance must be read with a section defining a noise disturbance. The Court ruled that it could not determine what a noise [*5]disturbance was under the ordinance because the ordinance refers to undefined reasonable persons of normal auditory sensitivities. The Court found the ordinance susceptible to subjective enforcement and ruled that it was not a constitutionally valid exercise of regulatory or police powers because it was not amenable to uniform enforcement and equal protection. 2003 WL 1906774 (NY Just. Ct. 2003),rev d, 7 Misc 3d 78, 796 NYS2d 511 (NY Sup. App. Term 2005). This Court notes that Mr. Lord offered no opposition or even an appearance in the Appellate Term. While this Court believes that it was correct in its initial holding, it is bound to follow the legal doctrine of stare decisis and the law as decided by the Appellate Term in the Lord case. The recency of the Lord decision by the Appellate Term and the fact that it upheld the Constitutionality of the Local Law at issue here, makes it legally impossible for this Court to distinguish it. While it is frustrating to this Court because it believes that the Local Law is unconstitutional, a higher court has stated that it is not.

This Court would probably resist that determination by the higher court if more weighty issues were at stake, such as life and death, liberty or segregation. See Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) (Stevens, J. dissenting) (saying of stare decisis, if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five justices, for overturning settled doctrine ). That is not the case here, but the issues before the Court nonetheless give it pause to consider the Constitutional implications of its decision and whether those concerns should override its adherence to stare decisis. In his seminal work, The Nature of the Judicial Process, (Yale University Press 1921), Justice Benjamin Cardozo wrote of the weight that should be given to the principles of stare decisis in each case:

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions.

On balance the Court believes that it should comment on these concerns in this dicta but otherwise adhere to the legal doctrine of stare decisis. In this regard, this Court notes the humility, care and caution demonstrated by Supreme Court Justices concerning their reluctance to overrule lower court decisions or in declaring acts of Congress unconstitutional or in changing their own precedents. See Pearson v. Callahan, 129 S. Ct. 808, 816, 172 L. Ed. 2d 565 (2009) (noting that, although at times it is correct for the Court to depart from the principles of stare decisis, overruling past precedents is done only with the utmost caution). Obviously this Court s power of judicial review and that of all other courts should be used sparingly because it is not the function of this Court or any other, to make law. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137 (1803). It is however our function to pass on the Constitutionality of the laws. I did that in the Lord case and a higher court found the Local Law Constitutional. I am bound by that decision. Hence, the instant motion to dismiss this case based upon the unconstitutionality of the Local Law must be denied. [*6]

Parenthetically this Court notes its decision in People v. Rafael Quiroga-Puma, 18 Misc 3d 731, 848 NYS2d 853 (NY Just. Ct., 2008) (declaring New York s unlicenced operation of a motor vehicle law unconstitutional was reversed by the Appellate Term). Again, there was no appearance by the defendant or his counsel in the Appellate Term. The Appellate Court made several erroneous findings including that the Attorney General had not been notified or given an opportunity to interpose opposition to this Court's sua sponte ruling. Also, the Appellate Court erroneously determined that this Trial Court had not determined that the defendant was an undocumented or illegal alien and immigrant. That too was not correct, but nonetheless this Court has followed the higher Court's ruling.

With all due respect to the higher courts and the Legislatures who make laws, it is not the function of this Court to make laws, but by determining the Constitutionality of Local Laws or even State statutes, this Court signals a need for reform of existing laws to allow for the changes in society's needs.

My decision in People v. Rafael Quiroga-Puma, supra , pointed to the need for reform of our unlicenced operation laws to provide for eligibility for driving licences for immigrants and stronger penalties for violations once that change in the law occurred. State law had been preempted by federal laws which had made it impossible for some immigrants, those typecast as either undocumented or illegal, to obtain driving licenses. My only alternative, even for repeat violators, was to impose a $150.00 fine and/or 15 days in jail at the taxpayer s expense. This was no a solution to the problem. I wanted more safety on our highways not special treatment as some critics suggested. See Judge Liotti Legislates, NY Post, December 26, 2007, at 30. The former Governor of New York agreed with my legal position. The Appellate Term's decision in reversing me did not address the underlying problem of the unconstitutionality of this state's unlicenced operation laws. Unfortunately, the problem persists to this day notwithstanding the need for drastic reform of state and federal law. As a result, our roads are made more dangerous by having a plethora of unlicenced drivers on them. Understandably, since the Appellate Term's decision, Mr. Rafael Quiroga-Puma has not returned to court, a bench warrant has been issued for his arrest, his whereabouts are unknown and according to New York's DMV data bank, he is still unlicenced. We do not know if he is driving or where he resides. We do not know if whatever car he may be driving is uninsured. We would know all of these things and more if he was determined to be eligible for a driver's licence.

Accordingly, the defendant's motion to dismiss the charges as unconstitutionally vague is reluctantly and regrettably denied.

Dated:January 22, 2009

Westbury, New York

ENTER:

_______________________

HON. THOMAS F. LIOTTI

VILLAGE JUSTICE