People v Zgonena (Robert)

[*1] People v Zgonena (Robert) 2018 NY Slip Op 51507(U) Decided on October 25, 2018 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2014-2468 OR CR

The People of the State of New York, Respondent,

against

Robert Zgonena, Appellant.

Sussman & Watkins (Michael H. Sussman of counsel), for appellant. Feerick, Lynch, MacCartney & Nugent PLLC (Brian Nugent of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Village of Tuxedo Park, Orange County (David L. Levinson, J.), rendered September 2, 2014. The judgment convicted defendant, after a nonjury trial, of violating sections 100-23, 100-40-4, and 100-53, of the Village of Tuxedo Park Code.

ORDERED that the judgment of conviction is affirmed.

On November 28, 2012, the People charged defendant, in an information, with seven violations of the Village of Tuxedo Park Code (Code), based upon defendant's importation of approximately 1,850 cubic yards of rock and soil fill onto his residential property without the required administrative review and permits. The instrument alleged that the fill created a 15-foot berm that encroached upon neighboring residential properties and created surface water runoff conditions that adversely affected those properties. At a nonjury trial, a Village of Tuxedo Park (the Village) building inspector acknowledged that he had given defendant his approval to commence the project, which was ostensibly to carry out vegetation clearance and limited land grading, but denied he had ever stated to defendant that he approved the project's ultimate scale. The inspector also agreed that he was aware that the project had far exceeded the scope of what he had initially approved, and that he did not issue a stop work order until the work had reached its final phase. Defendant, who did not dispute that the project, in its final configuration, violated the relevant zoning and approval provisions of the Code, testified that he had relied upon the knowledge and apparent consent of the Village's building inspector to initiate the project and to continue it nearly to completion until the inspector had issued the stop work order. Defendant was convicted of three of the seven charged violations: Code § 100-23, which bars soil filling without prior approval by the Board of Architectural Review and a permit; Code § 100-40-4, which requires a Village Board permit for land operations to fill or grade property; and Code § 100-53, which requires a permit by the Board of Architectural Review for any activity that alters a property's appearance.

On appeal, defendant contends that the Village should be equitably estopped from prosecuting the charges given his reasonable reliance on the building inspector's conduct in relation to the project. Moreover, defendant argues that his reliance rendered the proof of his intent to violate the Code legally insufficient and against the weight of the evidence. Defendant also contends that the counts were multiplicitous in that they are based on the same underlying conduct.

Defendant's contention that the trial evidence was legally insufficient to establish his intent to violate the Code is unpreserved for appellate review as he failed to renew his motion for a trial order of dismissal at the conclusion of all the evidence (see People v Hines, 97 NY2d 56, 61 [2001]; People v Acevedo, 136 AD3d 1386, 1386 [2016]; People v Broomfield, 55 Misc 3d 137[A], 2017 NY Slip Op 50506[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. People v Finch, 23 NY3d 408 [2014]).

Having failed to assert at trial that the prosecution should be barred on estoppel grounds, defendant has also not preserved his claim for appellate review (see CPL 470.05 [2]; People v Alford, 67 AD3d 696 [2009]; People v Garcia, 5 AD3d 150, 150 [2004]).

Were we to assume, for the sake of argument, that defendant may properly invoke estoppel, we would find the claim unavailing. Civil law equity principles are sparingly employed in criminal proceedings (see People v Sailor, 65 NY2d 224, 228 [1985]), where they are normally invoked to bar relitigation of matters already decided in a defendant's favor(see e.g. People v Fisher, 28 NY3d 717, 724-725 [2017]; People v Ortiz, 26 NY3d 430, 435-436 [2015]; see generally People v Aguilera, 82 NY2d 23 [1993]; Matter of Clark v Newbauer, 148 AD3d 260, 266 [2017]; cf. People v Villanueva, 137 AD2d 852 [1988]).

An estoppel may be "imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought" (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). However, it has long been the rule that " '[g]enerally, estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties' " (Matter of Parkview Assoc. v City of New York,71 NY2d 274, 282 [1988], quoting Scruggs-Leftwich v Rivercross Tenants' Corp., 70 NY2d 849, 852 [1987]; see e.g. Town of N. Elba v Grimditch, 131 AD3d 150, 157 [2015]; People ex rel. Farren v Williams, 263 AD2d 956, 956 [1999]), and, in particular, " 'for the purpose of ratifying an administrative error' " (Matter of Parkview Assoc. v City of New York,71 NY2d at 282, quoting Morley v Arricale, 66 NY2d 665, 667 [1985]; see Sullivan Farms IV, LLC v Village of Wurtsboro, 134 AD3d 1275, 1277 [2015]; Legal Aid Socy. v City of New York, 242 AD2d 423, 426 [1997]; see also Grishman v City of New York, 183 AD2d 464, 466 [1992] ["the errors of law of employees and officers are not binding upon the city"]). Thus, where a municipality has unreasonably delayed action to enforce a violation or even issued a permit in error, the municipality may not normally be estopped from correcting that error notwithstanding that "there are harsh results" (Matter of Parkview Assoc. v City of New York,71 NY2d at 282; see e.g. Matter of Astoria Landing, Inc. v New York City Envtl. Control Bd., 148 AD3d 1141, 1143 [2017]; Town of Southold v Estate of Edson, 78 AD3d 816, 817 [2010]; Matter of Westbury Laundromat, Inc. v Mammina, 62 AD3d 888, 890 [2009]). Among the reasons are that "as a [*2]matter of policy, [subjecting a governmental agency to the defense of estoppel] . . . could easily result in large scale public fraud . . . by improper collusions [from which] it would be very difficult for the public to protect itself" (Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 370 [1988] [internal quotation marks omitted]), that a municipality cannot "confer rights in contravention of the zoning laws" (Matter of Parkview Assoc. v City of New York, 71 NY2d at 282), and "that reasonable diligence would have readily uncovered for a good-faith inquirer" the existence of the violation(id.; e.g. Matter of Clear Channel Outdoor, Inc. v Town Bd. of Town of Windham, 9 AD3d 802, 804 [2004]; Matter of Twin Town Little League v Town of Poestenkill, 249 AD2d 811, 812 [1998]). Conduct in contravention of a zoning law "is never valid" (Village of Wappingers Falls v Tomlins, 87 AD3d 630, 631 [2011]), even when there is an erroneously issued permit, false advice, official acquiescence, or enforcement neglect.

The question then, is whether this is one of those " 'exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon' " (Matter of Atlantic States Legal Found., Inc. v New York State Dept. of Envtl. Conservation, 119 AD3d 1172, 1173 [2014], quoting Stone Bridge Farms, Inc. v County of Columbia, 88 AD3d 1209, 1212 [2011]) that would justify an enforcement estoppel (see Matter of Astoria Landing, Inc. v New York City Envtl. Control Bd.,148 AD3d at 1143; Matter of Oakwood Prop. Mgt., LLC v Town of Brunswick, 103 AD3d 1067, 1069 [2013]; Town of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061, 1064 [2012]).

Here, defendant is bound by the plain meaning of the Code, which provides an exemption only for "planting of landscaping, grading lawn areas, [and] normal repairs to occupied property" (Code § 40-8), and which bars, absent a permit, activities that "clear, fill or grade any property" (Code § 100-40-4), involve "soil filling" (Code § 100-23) or "exterior alteration, . . . site work, . . . or any other activity that alters the property's appearance" (Code § 100-53). There is no evidence that the inspector affirmatively represented to defendant that defendant's actions, subsequent to the initial approval, did not violate the Code, that the Village would permit the project to develop to whatever completion defendant contemplated notwithstanding the violations, or that the Village would grant defendant a variance after the fact. Thus, we are not persuaded that defendant was misled by the building inspector that, on the scale undertaken, his project did not violate the Code merely because the latter had informally approved of the project's initiation and did not act sooner to halt the project after it had far exceeded the scope of what the inspector had initially approved. Consequently, the facts do not establish exceptional circumstances sufficient to estop the Village's efforts to enforce its Code (see Matter of Marino v Town of Smithtown, 61 AD3d 761, 763 [2009]; International Merchants v Village of Old Field, 203 AD2d 247, 248 [1994]; see also Matter of Regan v DiNapoli, 135 AD3d 1225, 1228 [2016] [mistaken information and advice provided by a governmental agent " 'does not constitute the type of unusual circumstance contemplated by the exception' "], quoting Matter of Grella v Hevesi, 38 AD3d 113, 117 [2007]). As noted in Town of N. Elba v Grimditch (131 AD3d at 157-158), "[t]he neighbors . . . were entitled to reasonably rely both upon the [Code] itself and the fact that the Town would seek to enforce the provisions thereof."

Defendant's claim that the counts are multiplicitous, that is, that two or more of the three counts of which he was convicted charged the same offense (see People v Williams, 150 AD3d 1315, 1317 [2017]), is not preserved for appellate review, as defendant failed to make a pretrial [*3]motion to dismiss on that ground (see CPL 470.05 [2]; e.g. People v Cruz, 41 AD3d 893, 894 [2007]; People v Morey, 224 AD2d 730, 731 [1996]; People v Donaruma, 26 Misc 3d 143[A], 2010 NY Slip Op 50418[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). In any event, the claim is without merit in that each count contains an element not shared by the other counts: Code § 100-23, a permit for soil filling; Code § 100-40-4, a permit for grading; and Code § 100-53, a permit for altering a property's appearance.

In the exercise of our factual review authority (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and assess their credibility (People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Here, as against the evidence of the People's witnesses, whose testimonies were "coherent, internally and collectively consistent, and generally credible" (People v Broomfield, 55 Misc 3d 137[A], 2017 NY Slip Op 50506[U], *2), the Justice Court declined to credit the contrary evidence of the defense as to the material facts, a finding that we perceive no basis to disturb on the record before us.

We also reject defendant's claim that, even if the Village is not estopped from prosecuting the Code violations, in light of the building inspector's conduct, the People's proof that defendant intended to violate the Code was insufficient. Defendant admitted that he had engaged in the conduct underlying the charges. Defendant appears implicitly to rely on Penal Law § 15.20 (2) (d), which relieves a party of criminal liability where a mistaken belief that conduct does not constitute an offense is founded upon "an official statement of the law contained in . . . an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law." The building inspector's purported approval of defendant's actions cannot be construed to represent "an interpretation of statute or law . . . officially made or issued by a public servant" authorized to issue such interpretations (see People v Pettersen, 130 AD3d 1536, 1537 [2015]; People v Fludd, 44 AD3d 408, 409 [2007]; People v Marrero, 69 NY2d 382, 390 [1987]), especially where, as here, the Code provisions are clear and unambiguous (see People v Fraser, 96 NY2d 318, 327 [2001]). In any event, the " 'official statement of law . . . must in fact authorize the conduct in question; a reasonable belief that the statement authorizes such conduct is insufficient' " (People v Stephens,34 Misc 3d 43, 46 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]), quoting Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 125-126), and there was no proof that the building inspector explicitly authorized the conduct constituting the violations (see e.g. Matter of Clear Channel Outdoor, Inc. v Town Bd. of Town of Windham, 9 AD3d 802, 804 [2004]).

Accordingly, the judgment of conviction is affirmed.

MARANO, P.J., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2018