People v Yu

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[*1] People v Yu 2018 NY Slip Op 51790(U) Decided on December 10, 2018 Justice Court Of The Village Of Oyster Bay Cove, Nassau County Esposito, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2018
Justice Court of the Village of Oyster Bay Cove, Nassau County

The People of the State of New York, Plaintiff,

against

Allan yu and NORTH LONG ISLAND REALTY, LLC, Defendants.



XXXXX



Attorneys and Law Firms

Richard S. Prisco, Esq., Glen Cove, New York, for the People.

Eric Sanders, Esq., the Sanders Firm, P.C., New York, New York, for the Defendants.
Frank M. Esposito, J.

Background and Procedural History

Formally incorporated in 1931, the bucolic Village of Oyster Bay Cove on Long Island's north shore espouses time honored traditions in promoting safety and friendly relations among its citizenry. Comprised of approximately 728 homes and 2,250 residents, the Village sits within the Town of Oyster Bay, which was founded in 1667, and was the home of President Theodore Roosevelt. Indeed, Roosevelt's ideals of conservationism, humility and good governance permeate Village history, and these principles provide a solid foundation for the Village Code, its evolution and interpretation.

In the matter before the Court, the People of the State of New York (People) have charged defendants, Allan Yu and North Long Island Realty (collectively, "Defendants") with more than 370 Village Code violations (Counts) in four separate Village Court Informations (singularly "Information" and collectively, the "Informations") filed between June 27, 2016 and December 21, 2016. The 370 Counts center primarily on building code violations and animal control violations pertaining to safety, conservationism and nuisances.



[*2]Building Code Violations

The People allege Defendants violated myriad building code violations related to safety, nuisances and common principles of building permit application and approval requirements. As the People describe in their post-trial memorandum:

The first Information alleges that on or before June 9, 2016, the defendants caused or allowed the excavation and installation of bluestone for expansion of a driveway with no Village approvals. The second Information alleges that on or before September 26, 2016 the defendants allowed or caused the erection of a fence and two gates, the alteration of a non-conforming accessory cottage, the construction of two decks, and the erection of a chainlink roofless enclosure (dog run), all without approvals and within the wetlands buffer area. The alteration of the accessory cottage also increased its non-conformity. The third Information charges weekly violations of the counts contained within the second Information from October 3, 2016 through March 27, 2017. It also alleged that on or before April 12, 2017, the defendants caused or allowed the erection of an additional roofless chainlink enclosure without approvals, within the wetlands buffer, and in violation of the setback. Finally, it also alleges that illegal lighting fixtures were installed that were not properly shielded, created a nuisance on the adjoining property, and some were improperly located on a fence.

Animal Control Violations

The People allege in the Fourth Information that "on or about November 28, 2016, the [D]efendants allowed two dogs to be at large and off of their property. . . . [t]he [I]nformation also alleges that the dogs caused noise violations."

Also before this Court are several written complaints from Defendants' neighbors alleging that on several occasions not included in the Fourth Information, Defendants allowed their large Doberman Pinscher to bark excessively, escape, cross onto their property and threaten the safety of an elderly resident who frequently tended her garden near the property line between the adjoining properties.



Past Appearances and Court Conferences

The parties appeared before this Court no less than 15 times since an arraignment on July 20, 2016. The Court adjourned proceedings several times at the request of both parties, on consent of the respective parties, or at Defendants' request, to allow the parties to attempt settlement or otherwise allow Defendants to come into compliance with the Village Code.

On April 19, 2017, the Court held a hearing on a written complaint of animal control violations and took extensive evidence in the form of oral testimony, photographs and video recordings. Also on April 19, 2017, the Court found that Defendants' large Doberman Pinscher, clearly barking, growling, snarling and sneering in a threatening manner on the neighbors' property (in admitted video evidence) near a garden frequently tended by an elderly nonagenarian, was an annoying animal and a dangerous animal as those terms are defined by the Village Code [FN1] that posed a real threat to the safety of Defendants' neighbors who were [*3]vociferously, and justifiably, fearful of bodily injury.

On April 19, 2017, the Court ordered that the Doberman Pinscher be removed from the Village until such time as Defendants constructed an enclosure sufficient to contain the dangerous and annoying animal, provided the enclosure was approved by the Village and complied with the Village Code, which, among other things, prohibited construction on or near the protected wetlands located on Defendants' property, the space chosen by Defendant for construction.

On February 15, 2018, upon a written complaint by a neighbor, the Court held a contempt hearing in relation to the continued presence of Defendants' dangerous and annoying animal in violation of the Court's April 19, 2017 order. Upon evidence submitted, the Court found that the Doberman Pinscher continued to be present on Defendants' property, despite the absence of a proper enclosure acceptable to the People. The Court fined Defendants' $250 for contempt. The Court based the de minimus fine on Defendant Yu's testimony that the animal was present on his property for a brief period necessitated by a situation outside Defendants' control. However, as discussed, infra, the violation of this Court's order was not brief and therefore was not likely caused by the issue identified by Defendant Yu.

This Court consolidated the Informations and Complaints because of the common nucleus of operative fact and law, hearing them all in one trial on September 26, 2018. The Court ordered that post-trial briefs be filed 30 days after the parties' receipt of the trial transcript. The People filed their post trial memorandum on November 19, 2018. Defendants have not filed a post-trial memorandum, despite being given ample time to do so, and have not requested an enlargement of time.

The Parties' Respective Positions

During trial and in their post-trial brief, the People urge this Court to find Defendants guilty of all Counts and charges. The People assert that based on the lengthy history of these proceedings, Defendants' recalcitrance, the number of violations and continuing violations (which continue to this day) over a protracted period of time, this Court should find Defendants guilty, and / or liable, on all counts and allegations in the Informations and Complaints. The People recommend the maximum fines permitted by the law, $971,000.

During the trial, Defendants moved for dismissal on two grounds: (i) the Village Code is unconstitutionally void for vagueness; and, (ii) that the People selectively prosecuted Defendants. Defendants did not brief these issues in a post-trial memorandum, and, as such, the Court relies on Defendants arguments in support, made on the record at trial.



Findings of Fact

This Court considered hearing testimony, trial testimony, briefs and admitted evidence in making the following determinations.

This Court finds that the People have proven beyond a reasonable doubt that Defendants violated, and in many instances continue to violate, the Counts as charged. The People established that Defendant Yu, who lives on the property and owns Defendant North Long Island Realty, is the owner in fact of the property and exercised, and continues to exercise, dominion and control over the property as well as the dangerous animal.

Through the trial testimony of Bob Walles, a Village Enforcement Officer, Robert [*4]Peterson, a Village Building Inspector and Ms. Melinda Mackay, Defendants' neighbor, the People submitted unrebutted testimony that Defendants engaged in the conduct alleged, and continue to violate the Village Code. Though all the testimony need not be recited here, impermissible conduct includes, generally, numerous instances of building without permits or applications, construction of structures on wetland buffers, nuisance lighting, construction of gating, and gut renovations to a cottage without permits or approval, as well as the erection and maintenance of non-conforming structures and other conduct clearly prohibited by the Village Code or otherwise prohibited until the proper applications and building permits are obtained.

In addition to oral testimony, the People submitted substantial photographic evidence establishing Defendants' engagement in an unfettered pattern and practice of Village Code violations. Defendants routinely disregarded the Village Code, failed to cure the violations, despite years of initially amiable Village attempts to work with Defendants to do so, and showed a complete contempt for the Village Code, Orders of this Court and the safety of Defendants' neighbors. Ms. Mackey provided at trial, and at previous hearings, considerable oral testimony, photographic and video evidence, of the menacing, snarling, barking and ferocious, dangerous and annoying animal, together with her fears for safety engendered by it.[FN2]

Defendants are guilty of all charges and continuing violations brought by the People, and in the other Complaints against them which were consolidated for purposes of trial.



Defendants Legal Challenges

Despite the absence of any briefing by Defendants, the Court addresses two legal challenges made by Defendants at trial.



Void for Vagueness Challenge

Defendants argued that the Village Code is void for vagueness. However, they failed to identify a specific provision that they allege is overly broad or vague when moving for dismissal at the end of trial, referencing only "the statute itself" (i.e., the entire Village Code). Although given the opportunity to brief the matter post-trial, Defendants declined to do so. In the absence of a specific challenge, this Court reviewed the statutes alleged to have been violated in the Informations.

In assessing a vagueness challenge, courts perform a two-part analysis. "First, a statute is unconstitutionally vague if it fails to clearly define the conduct it proscribes." People v. Guzman, 36 Misc 3d 261, 263, 944 N.Y.S.2d 703 (Co. Ct. 2012) (citing Skilling v. United States, 561 US &mdash, 130 S Ct 2896 (June 24, 2010)). "A penal law statute must provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited. Secondly, it must be written in a manner which precludes arbitrary and discriminatory enforcement by police." Id. (citing Grayned v. City of Rockford, 408 US 104 (1972); People v Bright, 71 NY2d [*5]376 (1988)). The statute "'must provide explicit standards for those who apply them' so as to avoid 'resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.'" Id. (citing People v. Smith, 44 NY2d 613, 618 (1978), quoting Grayned at 108-109)).

Further, "[t]o prevail on a void-for-vagueness claim, the party raising the challenge bears the burden of establishing that the provision is unconstitutional beyond a reasonable doubt." Id.; see also, People V Scalza, 76 NY2d 604, 563 N.E.2d 705, 562 N.Y.S.2d 14 (1990). The burden is a heavy one, with courts routinely recognizing "the firmly established principle that legislative enactments are cloaked with a strong presumption of constitutionality." New York Socy. of Enrolled Agents v. New York State Div. of Tax Appeals, 161 AD2d 1, 5-6 (2d Dept 1990). Although rebuttable, courts will strike a statute as unconstitutional "[o]nly as a last resort." Id. at 6.

After reviewing the Village Code extensively, this Court finds that the Village Code sections at issue here address compelling and legitimate legislative goals. Founded on traditional, long-standing notions as described, supra, the Village Code is also remarkably similar to the codes of other villages, as well as county and state laws which have never been found to be void for vagueness. The Village Code is rational, reasonable and clearly communicates permissible and impermissible behavior. Definitions provided are specific, lack subjective requirements in favor of objective elements and are definitive on their face. The Village Code far exceeds the minimum standards of providing persons with ordinary intelligence a reasonable opportunity to know what is prohibited.



Selective Enforcement

Defendants argued at trial that the Village Code was being selectively enforced against them. Defendants provided no evidence to support their argument. Defendants did not call any witnesses, did not seek to admit any documents and any testimony elicited during brief cross examinations does not support selective enforcement.

To support a claim of selective enforcement, Defendants "must show that the law was enforced with both an 'unequal hand' and an 'evil eye.'" People v. Blount, 90 NY 998, 688 N.E.2d 500, 665 N.Y.S.2d 626 (1997). "[T]here must be a showing not only that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification." Id. (citing Matter of 303 W. 42nd St v. Klein, 46 NY2d 686, 693, 416 N.Y.S.2d 219 [1979]).

The Court finds that there was no selective enforcement by the Village in seeking to apply the Village Code to Defendants. The Village Code is written in a manner which precludes arbitrary and discriminatory enforcement by police, and Defendants did not present any evidence establishing otherwise. To the contrary, the unrebutted testimony of Mr. Peterson is that he went and spoke with Defendant Yu informally at first, and prior to issuing any written warning, citation or violation in an attempt to resolve any issues.

Mr. Peterson explained that the Village initially viewed several examples of Mr. Yu's conduct as violating the Village Code but did not submit any violations to Defendants at his initial meeting with Mr. Yu, choosing instead to give Defendants an oral warning and a period of time to cure the defects and other violations identified without penalty. It was only sometime later, when Defendants' failed to cure the identified issues, that the Village submitted its first [*6]written warnings to Defendants. Thereafter, matters escalated when Defendants continued to violate the Village Code, declined to cure the issues identified by the Village and later, allowed a dangerous animal to threaten Defendants' neighbors. On these facts, there can be no finding of selective enforcement.

This Court viewed, among other pieces of evidence, a video of Defendants' vicious, snarling, barking Doberman Pinscher on the Mackay property, and heard testimony from an elderly resident that she feared tending to her own garden, despite it being well within her property line, because Defendants' dog wandered onto her property, near the garden, on numerous occasions. After the Court ordered the removal of the dog from the Village, in conformity with the Village Code, Defendants failed to comply with the Order. Unrebutted evidence of the continued presence of the dangerous and annoying animal was adduced at trial, belying Defendant Yu's prior testimony at the contempt hearing. For the Court to accept Defendants' selective enforcement argument en toto, it would have to also find that the Court itself selectively enforced the animal control laws of the Village. The safety of Village residents is of paramount importance and represents the foundational underpinning of the prior orders precluding the dog's presence in the Village until a proper enclosure was built to contain the dangerous animal. These facts do not support a finding of selective enforcement.

Other challenges seemingly made by Defendants on the record are equally unavailing and unpersuasive, particularly in light of the overwhelming, and substantially unrebutted evidence of Defendants' pattern and practice of impermissible conduct.

Fines

The People urge this Court to issue the maximum fine of $971,000. Although the People proved, beyond a reasonable doubt, that Defendants engaged in the conduct alleged, and continue to engage in the conduct alleged, the Court declines to issue the maximum fines permitted by law.The Court, however, is mindful of the lengthy and continued violations by Defendants. Evidence of Defendants' pattern and practice of contempt for the Village, the Village Code and this Court is overwhelming. On balance, and taking into consideration voluminous third party testimony, and the need for Village Code compliance for the benefit of all Village residents, this Court imposes a fine equal to 25% of the maximum fines permitted by law, or $242,750. Further, Defendants are to comply with the Village Code in its entirety, to the satisfaction of the People, within six months of the date of this Decision and Order or face additional penalties of $50 per day per violation proved by the People at any subsequent hearing noticed by the People.

The People are ordered to undertake any further action necessary to effectuate this Decision and Order within thirty days.

This constitutes the Decision and Order of the Court.



Enter:

/s/ Frank M. Esposito

Frank M. Esposito, AJ

Dated: December 10, 2018

Oyster Bay Cove, New York Footnotes

Footnote 1:In Article I, § 106-1, the Village Code objectively defines a Dangerous Animal as "[a]ny animal which by its behavior is capable of inflicting bodily harm upon a person . . . ." An Annoying Animal is defined by the Village Code as, inter alia, "[a]n animal which, when it is not on the premises of its owner or custodian . . . [w]ithout being provoked, harasses or threatens a person in such a manner so as to create the apprehension of fear of bodily injury to such person. . . ." Id.

Footnote 2:Ms. Mackey's testimony, and the testimony, oral and documentary, of other Village residents and neighbors, together with pictures and video evidence admitted during the hearing and trial, strongly support an objective finding that Defendants' Doberman Pinscher was both a dangerous animal and an annoying animal. The Doberman Pinscher was bred to be large, intimidating, ferocious and aggressive. Although not all Doberman's continue to exhibit each of these traits, in the video viewed by this court, Defendants' dog was particularly intimidating and ferocious, leaving little doubt to this Court that aside from biting, even knocking over a lady of advanced age would likely be fatal. The Court did not take lightly the testimony concerning the fear of bodily injury experienced by Defendants' neighbors.