People v Martin

[*1] People v Martin 2006 NY Slip Op 52082(U) [13 Misc 3d 1231(A)] Decided on October 23, 2006 Justice Court Of Town Of Hyde Park, Dutchess County Steinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2006
Justice Court of Town of Hyde Park, Dutchess County

The People of the State of New York

against

John E. Martin, Defendant.



05-09-0012



David B. Sall, Esq.

Sall, Caltagirone & Coleman, Esqs.

Attorney for Defendant

3 Cannon Street

Poughkeepsie, New York 12601

Linda M. Murray., Esq.

Gellert & Klein, P.C.

Attorney for the Town of Hyde Park

75 Washington Street

Poughkeepsie, New York 12601

David L. Steinberg, J.

The defendant, John E. Martin, ("the defendant") is charged with eleven counts of having multiple unregistered, unlicensed motor vehicles on his property at 2401-2403 Route 9G in the Town of Hyde Park without site plan approval to operate a junkyard in violation of Hyde Park Code (HPC) §108-2, §108-23, §108-32, §108-33 and §108-39.

On or about July 12, 2005, defendant was served with an Order to Remedy Violation (Viol. 3-56) issued by Bruce J. Donegan, Deputy Zoning Administrator. The Order cited defendant for business related activities occurring at the above premises by the storage of unregistered and unlicensed motor vehicles without prior site plan approval. It directed defendant to comply with the law and to remedy the condition on or before July 26, 2005.

Subsequently, Deputy Zoning Administrator Donegan issued an appearance ticket, dated July 27, 2005, made returnable on September 8, 2005, on which date a twelve count Information was filed on his complaint. Defendant appeared by counsel, David B. Sall, Esq., who orally moved to dismiss the Information on facial sufficiency grounds. The motion was denied without prejudice to renew in writing. The case was adjourned to September 22nd for trial.

On September 22nd, the defendant personally appeared and was arraigned on a Superseding Information, filed that date, alleging eleven counts, one original count being eliminated. He declined to enter a plea on the grounds that the accusatory instrument was not an Information [CPL §170.65 (1)]. The People requested the court summarily determine whether the accusatory instrument was an Information which request was denied.

On October 6th, the defendant filed a Notice of Defense that he intended to raise at trial the ordinary defense of justification [Penal Law, §25.00(1), §35.05(1)] premised upon HPC, Chapter 108, Article XV ["Nonconforming Uses, Buildings and Lots"].

On October 11th, the People moved in limine to preclude the introduction of evidence at trial by the defendant seeking to establish that the defendant's use of the property was a pre-existing, non-conforming use. The gravamen of the motion was that the defendant had failed to timely appeal this issue to the Town of Hyde Park Zoning Board of Appeals (ZBA). The People contended the ZBA is the proper authority vested with jurisdiction to review Orders issued by the Zoning Administrator, including the Order to Remedy, not a Justice Court which lacks authority to review the propriety of such zoning orders, decisions or interpretations of the Zoning [*2]Administrator.

On October 17th, the defendant answered the motion in limine and cross-moved to dismiss the complaint pursuant to CPL §170.30(1)(a) on facial sufficiency grounds.

On November 4th, the People filed a Reply Affirmation in support of the motion in limine and an Affirmation in Opposition to defendant's cross-motion. Oral argument on the motions and cross-motion was held on November 10th.

Motion to Dismiss for Facial Insufficiency

The court will first address the defendant's motion to dismiss for facial insufficiency since it is a threshold issue in this prosecution. Defendant argues that the accusatory instrument fails to allege that his property is not a prior non-conforming use. He further contends that the pre-existing, non-conforming use provision of HPC §108-44 is an exception to the crime that is expressly contained within the statute, so that it must be alleged in the complaint. Because the complaint does not expressly state factual allegations negating the exception, defendant argues that the complaint is jurisdictionally defective.

A non-conforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of such ordinance.

HPC §, Article XV, §108-44 entitled "Continuing existing uses" states:

Except as otherwise provided in this Article, the lawfully

permitted use of land or buildings existing at the time of the

adoption of this chapter may be continued, although such use

does not conform to the standards specified by this chapter for

the zone in which such land or building is located. Said uses

shall be deemed nonconforming uses.

For a misdemeanor information to be facially sufficient, it must conform to the requirements of CPL §100.40 and §100.15. The factual portion must allege facts of an evidentiary character supporting or tending to support the charges. CPL 100.15 (3). Further, the allegations of the factual part, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged. CPL 100.40 (1)(b). Lastly, non hearsay allegations must establish, if true, every element of the offense charged and the defendant's commission thereof. CPL 100.40(1) (c). People v. Allen, 92 NY2d 378 (1998). The last requirement is known as the "'prima facie case' requirement," People v. Alejandro, 70 NY2d 133, 137 (1987), meaning that a facially sufficient information must contain enough factual allegations to establish a prima facie case.

While an information must state the crime with which the defendant is charged and the particular facts constituting that crime [People v. Hall, 48 NY2d 927 (1979)], the prima facie requirement is not the same as the burden of proof required at trial. People v. Henderson, 92 NY2d 677 (1999). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. People v. Casey, 95 NY2d 354 (2000),

Indeed, "the law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and factual behavior therefor be sufficiently alleged..." People v. Sylla, 7 Misc 3d 8, 10 (App. Term, 2nd Dept. 2005). The [*3]complete omission of an element from the face of the accusatory instrument, however, is a jurisdictional defect that requires dismissal. CPL §100.40[1][b][c]; People v. Konieczny, 2 NY3d 569, 576 (2004); People v. Inserra,

2 NY3d 741 (2004).

If a defining statute contains an exception, the absence of the existence of the exception is a material element that must be alleged in the accusatory instrument. As the Court of Appeals recently explained in People v. Santana, 7 NY3d 234 (2006):

"[e]ssential allegations are generally determined by

the statute defining the crime. If the defining statute

contains an exception, the [accusatory instrument]

must allege that the crime is not within the exception.

But when the exception is found outside the statute,

the exception generally is a matter for the defendant

to raise in defense, either under the general issue or

by affirmative defense"

Santana, supra at 236-237,

quoting People v. Kohut,

30 NY2d 183,187 (1972).

In the instant case, the accusatory instrument accuses the defendant of violating HPC §108-2, §108-23, §108-32, §108-33 and §108-34 as they relate to junkyards. In eleven counts, defendant is accused of illegally having unlicensed, unregistered

vehicles on his property on eleven separate dates between April 24, 2003 and August 13, 2005.

Defendant contends that the accusatory is defective because it fails to allege that defendant's property is not a prior, non-conforming use. He cites in support of his legal contention the following cases: People v. Rodriguez, 68 NY2d 674, 675 (1986), rev'g on dissenting opn. of Lazer, J., 113 AD2d 337-343-48 (2nd Dept., 1985) (Penal Law, §265.02, which defines criminal possession of a weapon in the third degree, includes an exception for certain loaded firearms that a person possesses in his or her home or business. See, Penal Law, §265.02(4); because these exceptions are included in the same provision that defines the crime of criminal possession of a weapon in the third degree, the absence of these exceptions must be expressly alleged in the accusatory instrument to be legally sufficient); People v. Chata, 8 AD3d 674 (2nd Dept.), lv. den., 3 NY3d 672 (2004) (same holding); People v. Torres, 188 Misc. 58, 61-62 (Crim. Ct., Bronx Co., 2001) (failure to allege that the allegedly falsely reported incident did not actually occur rendered the accusatory instrument charging defendant with falsely reporting an incident jurisdictionally defective); see also, People v. Stevens, 13 Misc 3d 214, 218-220 (Watertown City Court, 2006) (failure to allege in accusatory instrument that defendant's rental contract was not an "exempt purchase agreement" which is a true exception under the misapplication of property statute, Penal Law §165.00(1)(b) rendered the instrument facially insufficient); People v. Krathus, 181 Misc. 378, 380-381 (Cattaraugus Co., 1999)(failure to allege that the allegedly unclothed defendants were not breastfeeding, entertaining, or performing rendered the accusatory instrument charging them with public exposure [*4]jurisdictionally defective).

Where an exception to a defining penal law statute is found completely or partially outside the statute, such exception is deemed to be a proviso that an accused may raise in defense of the charge rather than an exception that must be alleged specifically in the accusatory instrument. For example, an accusatory instrument charging a person with criminal contempt in the second degree under Penal Law §215.50 (3) is not defective for failure to state that the allegedly violated court order was not issued in the context of a labor dispute. While the "labor dispute" exception is expressly mentioned in Penal Law §215.50 (3), that provision specifically refers to a definition of "labor disputes" found outside of Penal Law §215.50. Accordingly, the "labor dispute" exception is a proviso that the accused may raise as a defense to the charge rather than an exception that must alleged specifically in the accusatory instrument. People v. Santana, supra, 7 NY3d 234 (2006); People v. Becker, 13 Misc 3d 492 (Rochester City Ct., 2006) (omission of allegations that none of the three exceptions to statutory presumption of possession were applicable did not render misdemeanor information charging defendant with criminal possession of a controlled substance in the seventh degree under Penal Law §220.03 jurisdictionally defective, where the three exceptions in presumption of possession statute were not part of statute that defined crime with which defendant was charged, but rather, the exceptions were components of a separate statute, Penal Law §220.25(1)); People v. Lobianco, 2 Misc 3d 419,426-27 (Criminal Ct., Kings Co., 2003)(failure to allege that the defendant did not purchase the hypodermic needles at a pharmacy did not render the accusatory instrument charging the defendant with criminal possession of a hypodermic instrument jurisdictionally defective because the exception was contained in Public Health Law, Article 33 which was outside the defining statute, Penal Law §220.45).

An exception has been defined as language which absolutely excludes certain maters from its scope. People v. First Meridian Planning Corp., 201 AD2d 145, 154 (3rd Dept., 1994). A proviso is a condition or stipulation that qualifies or restrains the general scope of a statute, or prevents misinterpretation. People v. Durkee, 189 AD2d 276, 278 (3rd Dept., 1919).

The non-conforming use provision of HPC §108-44 is not part of the statutes relating to junkyards contained in HPC §108-32, 32 and 34. It may not be considered a specific exception to the junkyard provisions of these sections, but rather a separate statute articulating a proviso generally applicable to the Hyde Park zoning statutes as to lawful, pre-existing, non-conforming uses.

The court holds that HPC §108-44 is a proviso, not an exception that must be affirmatively alleged in the negative by the People in the accusatory instrument.

As a matter of "common sense and reasonable pleading" [People v. Devinny, 227 NY 397, 401 (1919) and in line with giving the instant accusatory instrument "a fair and not overly restrictive or technical reading," (People v. Casey, supra at 360), the court finds the accusatory instrument to be facially sufficient. It contains seven pages of factual allegations setting forth a clear and sufficient expression of the factual basis for the offenses alleged. People v. Konieczny, supra; People v. Casey, supra; People v. Sylla, supra, 7 Misc 3d 8, 11-13 (App. Term, 2nd Dept.), lv. den. 4 NY3d 857 (2005); People v. Hall, 4 Misc 3d 60, 63 (App. Term, 2004).

In People v. Campbell, 6 Misc 3d 130(A), 2005 NY Slip Op. 50064[U] (App. Term, 2nd Dept., 2005), the court held that, "...the issue is whether the exemption on its face exhausts the limitations on enforcement, and if not, whether the result fairly apportions the burden of proof and comports with rational pleading requirements..." Accord, People v. Flowers, 8 Misc 3d 516, [*5]519 (Crim. Ct., NY Co., 2005) [in a prosecution for unlawful commercial activity in the subway system (21 NYCRR §1050.6 (b) (2)), based on defendant's alleged solicitation of money on a subway car, the People were required to allege and prove that defendant did not have authorization from the NYC Transit Authority to engage in such activity; the exception is contained in the regulation defining the violation, and the burden on the People is not undue since, upon request, a defendant must provide information or documents showing authorization, and absence of authorization can be established by putting into evidence a certified public record or other form of business entry].

In the instant case, requiring the People to allege and prove that defendant's property is not being properly used as an alleged junkyard, because such use was not a lawful, pre-existing non-conforming use would unfairly apportion the burden of proof. Quite simply, the People would be required to affirmatively allege and prove beyond a reasonable doubt the negative facts that prior to the enactment of the Hyde Park zoning ordinance, the property had never been lawfully used as a junkyard. Such a result would not fairly apportion the burden of proof and comport with rational pleading requirements.

Accordingly, the defendant's motion to dismiss the accusatory instrument as jurisdictionally defective is denied.

Motion In Limine to Preclude Defense of Pre-Existing, Non-Conforming Use

It is undisputed that the defendant has never filed an appeal with the Hyde Park Zoning Board of Appeals concerning the Order to Remedy, dated July 12, 2005. Further, the accusatory instrument alleges that defendant never filed an appeal from a Notice of Complaint, dated October 27, 2003, which was mailed to defendant's father, Ben Martin, at the subject address. Ben Martin died on January 30, 2001. It is further alleged that defendant never filed an appeal from a prior Order to Remedy, dated November 29, 2004, mailed to defendant regarding unregistered motor vehicles and site plan approval needed on the premises.

Thus, the Town of Hyde Park has made three efforts to have the property remediated. No response from the defendant has been forthcoming. No appeal has been filed to the ZBA.

Town Law §267-a (5)(b), and by reference HPC §108-113, provides that an appeal shall be taken within sixty days after the filing of any order, requirement, decision, interpretation, or determination of the administrative official to the Zoning Board of Appeals. Moreover, an appeal stays all proceedings in furtherance of the action appealed from until the ZBA renders their decision. This would include the instant criminal proceeding.

The ZBA is vested with the authority to make zoning interpretations, decisions and determinations arising out of appeals from orders and opinions filed by the administrative official for the Town. see, Town Law, §267-a, §267-b. As the People point out, these statutes seemingly anticipate and effectively prevent the distraction that would otherwise occur of a trial within a trial, by giving the authority to the ZBA to review the Zoning Administrator's Orders while staying proceedings in Justice Court.

Defendant contends that Penal Law §25.00 "unconditionally permits defendant to raise a defense at trial." Indeed, it is a fundamental constitutional right of the accused to introduce evidence and present a defense. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986); Chambers v. Mississippi, 410 U.S. 284 (1073).

However, it is well established that the right to present a defense or certain evidence may be curtailed or excluded on notice, procedural or evidentiary grounds. For example, a defendant must provide timely notice of the intention to present psychiatric evidence, or otherwise risk [*6]being precluded from introducing such evidence at trial. CPL §250.10. Similarly, a defendant must provide timely notice of the intention to present an alibi as a trial defense, or otherwise risk being precluded from introducing such evidence at trial. CPL §250.20. These limitations have been upheld by the United States Supreme Court and New York Court of Appeals. Michigan v. Lucas, 500 U.S. 145 (1991); Taylor v. Illinois, 484 U.S. 400 (1988); People v. Almonor, 93 NY2d 571 (1999); (psychiatric evidence); Williams v. Florida, 399 U.S. 78 (1970); People v. Copicotto, 50 NY 222 (1980) (alibi); see also People v. Westergard, 113 AD2d 640 (2nd Dept.,1985), aff'd.

69 NY2d 642 (1986). So, too, a defendant may not introduce evidence of the violent propensities of the alleged victim merely to show that the victim was the likely aggressor. Matter of Robert S., 52 NY2d 1046 (1981); People v. Miller, 39 NY2d 543 (1976); People v. Chin, 3 AD3d 427 (1st Dept.), lv. den. 2 NY3d 738 (2004). Nor may a defendant generally present evidence of the victim's past sexual conduct in sex offense cases unless such evidence proves or tends to prove certain specific instances of conduct, or rebuts certain facts or evidence (CPL §60.42), or in a non sex-offense cases unless the court makes an affirmative finding that the evidence would be relevant and admissible in the interests of justice after an offer of proof by the proponent of the evidence (CPL §60.43). Other rules of evidence limit a defendant's right to introduce evidence or present a defense. It is sufficient to state that the above examples underscore that the fundamental right to introduce evidence or present a defense is not unconditional and unlimited.

Further, a Justice Court is of limited jurisdiction whose powers are prescribed by the New York State Constitution. With respect to criminal jurisdiction, the Uniform Justice Court Act (UJCA) provides that insofar as criminal matters are concerned, the Justice Courts must resolve and enforce other applicable laws while they preside over criminal matters. UJCA §2001(2) states, "Unless otherwise specifically prescribed, the practice and procedure in the court shall be governed by the criminal procedure law."

In this case, the administrative remedy to follow has been "otherwise specifically prescribed" in Town Law, §267-a and §267-b. When this court presides over zoning violations, it must enforce the statutes that address the zoning appeals process, and must not blindly apply the criminal procedure law alone.

It has long been held that the propriety or correctness of the underlying administrative order generally may not be collaterally contested in a criminal prosecution for its disobedience. People v. Namro Holding Corp., 10 AD2d 702 (1st Dept.), aff'd.

8 NY2d 1131 (1960) (propriety of the Notice of Violation could not be collaterally reviewed in the criminal prosecution for its disobedience; the only issue to be resolved in the criminal prosecution was whether or not the defendant has complied with the Notice); People v. Gillman, 6 AD2d 899 (2nd Dept., 1958) (the propriety of an administrative order issued by the NYC Commissioner of Housing and Buildings may not be reviewed, nor could the constitutionality of the zoning resolution be challenged in a criminal prosecution where no appeal has been made to the Board of Standards and Appeals); People v. NYRA, et al., 135 Misc 2d 453 (App. Term, 2nd Dept., 1986)(collateral attack on notice of violation and direction to cease in criminal proceeding is precluded); People v. Kaufman, 129 Misc 2d 1052 (App. Term, 1st Dept., 1985) (it was error to dismiss informations on the ground that operation of flea market was not an impermissible use and that underlying notices of violation were without basis; the propriety of an administrative order issued by the Commissioner of Buildings may not be collaterally reviewed in the criminal prosecution for its disobedience); People v. Looe, 51 Misc 2d 835 (Criminal Ct., Queens Co., [*7]1966) (court could not review the propriety, reasonableness or desirability of the orders of the Commissioner of Buildings where no appeal has been taken to the Board of Standards and Appeals; court rejects the contention that it should or can substitute or superimpose its judgment or preference interpretation of the zoning regulations for those of the Commissioner of Buildings); People v. Feinberg, 48 Misc 2d 187 (Criminal Ct., Bronx Co., 1965) (it is not for a criminal court to review a municipal order which is valid on its face when defendant ignored the order at his peril; ordinarily, the validity or propriety of a departmental order may not be decided in a prosecution for its violation, citing Namro, supra); People v. Clute, 47 Misc 2d 1005 (Washington Co. Ct, 1965) (court refused to permit the defendant to challenge the constitutionality of the zoning ordinance where the defendant had failed to appeal the Notice of Violation to the Board of Appeals); People v. Gutterman, 36 Misc 2d 795 (Criminal Ct., Queens Co., 1962) (defendant cannot attack the propriety of order in a criminal prosecution for its disobedience; validity of the order should be challenged by appeal to the Board of Standards and Appeals, citing Namro, supra and Gillman, supra);

Practice Commentary to Town Law, §268 by Terry Rice, 61 McKinney's Cons. Laws of New York, p. 392 (2004); 2 Salkin, New York Zoning Law and Practice, (4th ed.) §36:07 (2002).

The defendant principally relies on People v. Perkins, 282 NY 329 (1940) (defendant's conviction reversed and information dismissed when court finds no evidence to justify the finding that the defendant was doing more than continuing the permitted non-conforming use); People v. Franco, 5 Misc 3d 1015A (Nassau Dis. Ct., 2004) (defendant convicted after court rejects defense of prior, non-conforming use on the merits); People v. Burns, 115 Misc 2d 897 (Oswego City Ct., 1982) (defense of prior non-conforming use fails on the merits; defendants convicted). However in none of these cases was the issue of exhaustion of the right to appeal to the ZBA raised as a ground for objecting to the assertion of the affirmative defense of non-conformity. That is, the issue of the appropriate forum to decide the issue of non-conformity was not a contested issue by the parties. see also, People v. Needleman, 61 Misc 2d 386 (Nassau Dist. Ct., 1969) (defendant convicted after court rejects defense of prior non-conforming use on the merits). These cases may not be viewed as dispositive when, as here, a threshold objection is asserted by a party.

The court has also considered the fact that the People commenced the instant criminal prosecution before the expiration of the sixty day appeal period. While it arguably may be a better practice not to commence a criminal prosecution until after the appeals period has expired, there is no bar in doing so. In fact, the relevant statutes contemplate such criminal prosecution being commenced prior to an appeal being taken by a property owner in that any criminal prosecution is immediately stayed by the filing of an appeal to the ZBA. Town Law §267-a (6)

The defendant had both the right and the opportunity to review the Order to Remedy by appeal to the Zoning Board of Appeals as provided in Town Law §267-a (5)(b) and HPC §108-113. Had the defendant appealed the Order to Remedy to the ZBA, the ZBA's determination would have been binding in any subsequent criminal prosecution. People v. Waring, 110 Misc. 392 (Otsego City Ct., 1981). The defendant chose not to appeal the Order to Remedy, and cannot now attack its validity in a criminal proceeding.

The People's motion in limine is granted. Defendant is precluded from the introduction of evidence at trial which seeks to establish his use of the property at issue constitutes a pre-existing, non-conforming use. [*8]

The foregoing shall constitute the Court's Decision and Order.

______________________________________

David L. Steinberg

Town Justice

Dated: Hyde Park, New York

October 23, 2006

The Court considered the following papers upon this motion and cross-motion:

Defendant's Notice of Defense, dated October 6, 2005

People's Notice of Motion, Affirmation, and Memorandum, of Law, dated October 11, 2005

Notice of Cross-Motion and Affirmation, dated October 17. 2005

People's Reply Affirmation and Affirmation in Opposition, dated November 4, 2005

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