Department of Housing Preservation and Development of City of New York v. Ieraci

CourtNew York City Court
Citation156 Misc.2d 646,594 N.Y.S.2d 574
Decision Date21 December 1992

Page 574

594 N.Y.S.2d 574
156 Misc.2d 646
CITY OF NEW YORK, Petitioner,
Anthony IERACI, Respondent.
Civil Court of the City of New York,
Kings County, Trial Term,
Part 14.
Dec. 21, 1992.

Page 575

Sara Lee Evans, Eric Epstein of counsel, New York City, for petitioner.

Anthony Ieraci, pro se.

[156 Misc.2d 647] GUSTIN L. REICHBACH, Judge:

Petitioner, Department of Housing Preservation and Development [hereinafter referred to as "DHPD"], seeks by motion dated September 23, 1992, to have the Court hold respondent Anthony Ieraci in both criminal and civil contempt (Judiciary Law Sections 751, 753) for disobedience of an Order, dated March 28, 1990, of the Hon. Gerald Bank, in which respondent consented to correct all violations of record at 1618 Beverly Road, Brooklyn. Petitioner also seeks the imposition of civil penalties against respondent for failure to timely correct certain of those violations (Section 27-2115, New York City Administrative Code), as well as an order to correct outstanding violations (Section 27-2120, New York City Administrative Code).

The respondent, despite cautions by both Judge Bank and this Court, has insisted on representing himself throughout these extended proceedings. In June of 1989, petitioner, DHPD, brought what is known as a "comprehensive" proceeding seeking both civil penalties and an Order to Correct against respondent. That action was settled by the Consent Order of March 28, 1990, compliance with which is the subject of the instant contempt proceeding.

Subsequent to the Order of March 28, 1990, an initial contempt proceeding was brought by petitioner on February 6, 1991 [hereinafter referred to as "Contempt 1"]. That proceeding was brought as a result of DHPD inspections conducted November 28, 1990 and December 5, 1990. Contempt 1 was settled by entry of a second Consent Order dated June 18, 1991. On respondent's application, that second Consent Order was eventually vacated by Order of Hon. Gerald Bank on August 7, 1992. As a result, Contempt 1 was reinstated. Contempt 1 sought to hold respondent in both criminal and civil contempt and to assess civil penalties for the claimed failure of respondent to timely correct 33 specific violations that were part of the March 28, 1990 Consent Order. That action came on to be tried before Judge Knipel and resulted in a finding by the Court on September 14, 1992, that petitioner had not carried its burden of proof and, consequently, the Court dismissed Contempt 1.

Prior to the commencement of this trial, (hereinafter referred to as "Contempt 2") respondent raised the claim that this proceeding could not be maintained because of the prior decision and judgment rendered in respondent's favor in Contempt 1.

[156 Misc.2d 648] Respondent's claim, while inarticulately presented, raises complex questions involving the doctrines of double jeopardy, mandatory joinder of claims, res judicata and the inherent power of the Court to fairly control the administration of justice. Respondent argues that petitioner has had its chance to prosecute him for the claim that he failed to comply with the consent order of March 28, 1990 and that in dismissing the City's prior proceeding, Judge Knipel necessarily credited Respondent's evidence that all repairs had been timely made. The petitioner argues that the 33 violations for which contempt and civil penalties are now sought are different violations than those sued upon in the earlier proceeding and thus considerations of double jeopardy and res judicata do not apply. All that Judge Knipel determined, DHPD argues, is that petitioner failed to meet its burden of proof as to one set of 33 violations and this proceeding involves an entirely different group of 33 violations.

The Court has reviewed the transcript of the trial before Judge Knipel to determine what issues were raised in Contempt 1 and Judge Knipel's findings regarding them. To prove its case in Contempt 1 DHPD relied exclusively on four inspection reports dated November 28, 1990, December 5, 1990, August 27, 1992 and September 2,

Page 576

1992. Respondent's case in Contempt 1 consisted of the testimony of respondent Anthony Ieraci and his friend, John Vanderborg, that they had gone through the list of violations together and completed all necessary repairs a year or two ago. No bills or receipts were submitted into evidence. Judge Knipel credited the sworn denials of the respondent and Mr. Vanderborg, rejected the accuracy of the four inspection reports received in evidence, and dismissed the proceeding. It matters not whether this Court would have come to the same conclusions as Judge Knipel. 1 What this Court must resolve is the impact of Judge Knipel's finding in Contempt 1 on this proceeding.

The same inspection reports that were admitted into evidence in Contempt 1 were also submitted by DHPD in this case. 2 Thirty of the 33 violations sued upon in Contempt 2 [156 Misc.2d 649] appear in the inspection reports of November 28, 1990 and December 5, 1990 and thus were known to the City prior to the time it brought Contempt 1. Despite this knowledge, these violations were not made part of Contempt 1. The City's only response to the Court's queries as to why these claims were not included in the earlier action was simply that it had been "a mistake." The Court thereupon dismissed these 30 violations sued upon in Contempt 2. The Court permitted petitioner to pursue criminal and civil contempt in Contempt 2 only as to the three violations about which it did not have proof when it commenced Contempt 1.

Double Jeopardy, Res Judicata and Mandatory Joinder of Claim

In their most narrow and classical definitions, the doctrines of double jeopardy and res judicata would not be applicable to bar the Contempt 2 proceeding.

Double jeopardy is a concept of the criminal law which forbids successive prosecutions for the same offense. It "represents a fundamental ideal in our constitutional heritage ..." Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).

Indeed, unlike most other constitutional claims that can only be pursued on appeal after trial, in New York a denial of a pre-trial double jeopardy claim may be reviewed in an interlocutory fashion pursuant to CPLR Article 78. Wiley v. Altman, 52 N.Y.2d 410, 438 N.Y.S.2d 490, 420 N.E.2d 371 (1981).

The application of the prohibition against double jeopardy requires that a person is put in jeopardy by being subject to multiple prosecutions for the same offense. While DHPD's various claims of non-compliance all arise from the same consent order, each uncorrected violation constitutes a separate violation of the Order and each could individually support a finding of non-compliance. A prosecution for failing to paint one apartment is not the same as being charged with failing to refit a door to another apartment.

Yet, in its application of the State's criminal law, New York has statutorily expanded the traditional definition of double jeopardy to include separate prosecution for multiple or separate[156 Misc.2d 650] offenses which arise out of the same transaction. When the prosecutor has evidence to support a conviction to all charges but charges some offenses and not others, any subsequent prosecution for the uncharged offense is barred, CPL Section 40.40(1)(2). This is precisely what occurred here. Petitioner brought Contempt 1 alleging 33 uncorrected violations based on the inspection reports of November 28, 1990, and December 5, 1990. Those same reports indicate that 30 of the 33 violations charged in

Page 577

Contempt 2 were extant at the time Contempt 1 was initiated. Clearly, the DHPD had an opportunity to join all these claims in the first proceeding. What this Court must decide is whether this statutory rule of criminal procedure, which bars separate prosecution of jointly prosecutable offenses, has application to a contempt proceeding under the Judiciary Law.

The United States Supreme...

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