People v Martino (Richard)
Annotate this CaseDecided on September 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2013-2134 S CR
The People of the State of New York, Respondent,
against
Richard Martino, Appellant.
Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), rendered September 16, 2013. The judgment convicted defendant, after a nonjury trial, of violating section 275-5 of the Code of the Town of Southold.
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
On November 21, 2006, defendant was charged, regarding property located in Mattituck, adjacent to the Long Island Sound, with violating section 275-5 of the Code of the Town of Southold, in that he had constructed "stairs within 100' of the bluff line without a permit from the Board of Trustees." After a nonjury trial, the Justice Court found defendant guilty as charged, and fined him $4,000.
Section 275-5 (A) of the Code of the Town of Southold provides that "[n]otwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (§ 275-3C) [sic] without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect."
Section 275-3 (C) of the Code of the Town of Southold provides that "[t]he following areas are subject to protection under Chapter 275 of the Code of Southold. (1) Any freshwater wetland, tidal wetland, beach, bluff, dune, flat, marsh, swamp, wet meadow, bog, or vernal pool; (2) Any creek, estuary, stream, pond, canal, or lake; (3) Land under water; (4) Land subject to tidal action; (5) Land within 100 feet of the areas listed above; (6) All Town waters."
Section 275-2 (A) of the Code of the Town of Southold contains the following applicable definitions:
A "Bluff" is "[a]ny bank or cliff with a precipitous or steeply sloped face adjoining a beach or a body of water. The waterward limit of a bluff is the landward limit of its waterward natural protective feature. Where no beach is present the waterward limit of a bluff is mean low water. The landward limit is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline."
A "Bluff Line" is "[t]he landward limit of a bluff that is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of [*2]the bluff where the trend of the land slope changes to begin its descent to the shoreline."
"Operations" includes "[t]he placement, repair or removal of structures, including, but not limited to, boats, floating docks, floats, dock components, and duck blinds," and "[t]he erection, construction, alteration, repair or enlargement of any building, dock, pier, wharf, bulkhead, jetty, groin, or any system or other structure, temporary or permanent, on wetlands, or in any area within Trustee jurisdiction."
Included in the definition of "Structure" is "stairs."
"Trustees" are "[t]he Board of Trustees of the Town of Southold."
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the elements of a violation of section 275-5 of the Code of the Town of Southold were not established.
The testimony of a bay constable was aided by the admission into evidence of three photographs of the stairs in question. However, the bay constable never testified where the bluff line was on the photographs. He never testified that the stairs were on land within 100 feet of a bluff. The bay constable merely "guess[ed]" that the stairs were within the jurisdiction of the Board of Trustees. The Chairman of the Town of Southold Board of Trustees, who was a witness for the prosecution, never testified that the incline arising from the beach on defendant's property on which the stairs were located was steep enough to constitute a bluff. His testimony as to where the bluff line was on defendant's property was based on an approximation. While he testified that "[w]etland jurisdiction is one hundred feet of vegetation wetland and fresh water wetland is also one hundred [feet] from the wetlands," he never specifically testified that the stairs were within 100 feet of a bluff. The photographs merely show stairs going from the rear of a property to the beach and the sound. They do not contain any measurements. Thus, defendant's conviction of violating Section 275-5 of the Code of the Town of Southhold was based on legally insufficient evidence.
In light of our determination, we need not address defendant's other contentions.
Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Iannacci, J.P., Tolbert and Connolly, JJ., concur.
Decision Date: September 18, 2015
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