People v Lamountain
Annotate this CaseDecided on December 27, 2021
Justice Court of the Village of Farmingdale, Nassau County
The People of the State of New York
against
Gayle Lamountain, Defendant
Index No. XXXXX
Robert P. Kirk, Village Prosecutor
Gayle Lamountain, Defendant, pro se
Theodore W. Firetog, J.
FACTS AND ARGUMENTS
On November 12, 2021, an arraignment was held before this Court for defendant Gayle Lamountain whose motor vehicle was issued Parking Ticket F208342 ("hereinafter Ticket") by a Village of Farmingdale Code Enforcement Officer on July 28, 2021. The Ticket states "THE PEOPLE OF THE STATE OF NEW YORK V. OWNER/OPERATOR OF THE MOTOR VEHICLE DESCRIBED BELOW." The description of the Motor Vehicle is then provided on the Ticket. The defendant, who appeared pro se, stated on the record that she is the owner of the vehicle noted on the Ticket.
Under the description of the Motor Vehicle, the Ticket reads as follows: "YOU ARE HEREBY CHARGED WITH THE FOLLOWING VIOLATION WHICH WAS OBSERVED BY THE DEPONENT IN HIS/HER PRESENCE".
At the bottom of the Ticket there is the Signature of Deponent and a section marked "Violation" that has been filled in with the words "Expired Registration." The Deponent is Bruce Watson, who was a Village Code Enforcement Officer at the time the Ticket was issued.
On the left side of the Ticket, below the heading "Village Code," there is a column of little boxes with each box noting a numerical code section and type of offense. The Court notes that the box marked "401-1A Expired Registration" is checked off on the Ticket.
The problem is, no Village Code Section 401-1A exists. When the Court questioned the Village Prosecutor about the nonexistence of the Village Code provision noted on the Ticket, the Prosecutor informed the Court that the box marked 401-1A is a reference to the New York State Vehicle and Traffic Law (hereinafter "VTL") section 401-1a, and not a Village Code provision. The same explanation applies to the boxes marked 306B, 403, and 402-1 on the Ticket, all of which relate to VLT sections and not to provisions of the Village Code (although there is a Village Code section 402-1, which pertains to "Peddling and Soliciting" but not to a parking [*2]offense). Therefore, if the Ticket was issued for a violation of VTL 401-1a, it would appear that Ticket does not conform to the requirements of VTL §238(2) in that there is an incorrect "description of the charged violation, including but not limited to a reference to the applicable traffic rule or provision of this chapter."
This Court recognizes that other courts have allowed, upon motion, cross-outs or corrections on traffic tickets if the proposed amendment is a defect or error which relates to a matter of form or the numerical designation of the charge, so long as the theory of prosecution hasn't changed or the defendant has not been prejudiced. See People v. Pena, 146 Misc.2nd 767, 552 NY2d 543 (Crim.Ct.N.Y.Co., 1990), and People v. Kreismann, 162 Misc 2d 726, 619 N.Y.S.2d 253 (Kensington Justice Ct., Nassau Co, 1994). In the case at bar, however, the correction, if made, changes the offense charged against the defendant from a violation of the Village Code, which does not contain a description of the offense or the associated penalties and fines, to a violation of state law that lists every element of the offense, as well as the penalties and fines that may be imposed (which differ in several respects from the "Fines" noted on the right side of the Ticket for the box marked 401-1A). In addition, such a correction to this Ticket would not resolve, prior to a court appearance, other already printed and misleading Village traffic tickets from being be issued for VTL offenses, nor would it justify the issuance of VTL 401-1A violations that may be conflict with the requirements of VTL §1640, which pertain to permissible village traffic regulations (especially because a violation of VTL 401-1a [unregistered motor vehicle] applies only to motor vehicles operated or driven upon the public highways of this state, and not to parked vehicles), thus raising possible due process and ethical concerns.
But even if the Court did allow, upon motion by the Prosecution, a correction to the Ticket (noting the violation is issued under the VTL), it doesn't solve the problem in this case.
The VTL is state law. When the Village Prosecutor was asked by the Court as to what authority exists for Village Code Enforcement Officers to enforce state laws, the Prosecutor asked for time to review the Village Code. Following a 28-day recess, the People requested that the case be dismissed in the interest of justice. Based upon the Opinion and Decision set forth below, this Court does not need to discuss the procedural defects or other aspects of the People's request or to rule on the motion itself.
OPINION AND DECISION
Following a review of the VTL, Criminal Procedure Law ("CPL"), and the Village Code, no authority can be found, nor was any presented by the People, for Code Enforcement Officers of the Village of Farmingdale to issue parking tickets pursuant to the state VTL.
There is Section 7-2 of the Village Code which gives the authority to Code Enforcement Officers "to issue appearance tickets under the provisions of §150.10 of the Criminal Procedure Law of the State of New York and under the Code of the Village of Farmingdale."
However, Section 7-1 of the Village Code specifically defines such an appearance ticket as a written notice "directing a designated person to appear in Village Justice Court of the Village of Farmingdale at a designated future time in connection with an alleged violation of a designated offense under the provisions of the Code of the Village of Farmingdale [emphasis [*3]added]."
Therefore, Section 7-1 and 7-2 of the Village Code say nothing about the authority of Code Enforcement Officers to issue written notices (appearance tickets) for violations of state law, only the authority to issue such notices for designated offenses under the provisions of the Village Code.
In addition, §150.10 of the CPL states:
An appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title [emphasis added].Village Code Enforcement Officers are not police officers as defined in §1.20(34) of the CPL. Their authority is to issue an appearance ticket as a public servant is derived from the Village Code provisions enacted pursuant to N Y. Municipal Home Rule Law. Such authority is contained in Chapter 7 of the Village Code, which only authorizes the issuance of an appearance ticket for an alleged violation of a designated offense under the Code.
Furthermore, an appearance ticket does not confer upon this Court jurisdiction over the Defendant. People v. Ashkinadze 167 Misc 2d 80, 636 N.Y.S.2d 554 (NY City Court, Criminal Court, 1995). Jurisdiction is obtained by filing an accusatory instrument. In the case at bar, the accusatory instrument is the Ticket itself, which presumably is issued in accordance with Chapter 98 [Vehicle and Traffic] of the Village Code. Chapter 98, however, has no provision relating to the enforcement of the state VTL.
There is no question that the Incorporated Village of Farmingdale has the authority in accordance with §1640 of the VTL and under §98-2 of the Village Code to establish traffic regulations consistent with §10 of the NY Municipal Home Rule Law including regulations that are equivalent or analogous to certain provisions of the VTL. A Village cannot, however, arrogate to itself the authority to enforce the VTL. People v. Thompson, 157 Misc 2d 233 (NY Just. Ct. 1993). With respect to the VTL section at bar, there is no equivalent or analogous Village Code provision in Chapter 98 of the Village Code or elsewhere in the Village Code. Because no such Code provision exists, this Court does not have to determine the validity of such a provision or the authority of the Village to establish traffic regulations equivalent to VTL 401-1a or any of the other VTL sections noted on the Ticket.
Although this Court holds the highest respect for the Village Code Enforcement Officers who are diligently doing their jobs for the Village of Farmingdale and the residents of the Farmingdale community in enforcing the Village Code, a mistake was made. Perhaps it was because no one (including this Court) had directly addressed this issue before. I have no doubt that the Village Code Enforcement Officer who wrote Parking Ticket F208342 honestly believed (albeit incorrectly) that he was empowered to write a parking ticket for a violation of state law.
Therefore, based on the foregoing, it is the Decision of this Court that the Farmingdale [*4]Village Code Enforcement Officer had no authority to issue Parking Ticket F208342 for a violation of a state VTL. Accordingly, this Ticket is dismissed.
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