Kessler v. Sherman

• Decision Date: 15 February 1977
• Parties: , 362 N.E.2d 254 In the Matter of Henry KESSLER, Appellant, v. Chester D. SHERMAN et al., as Justices of the Justice Court, Town of Shelter Island, Respondents, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 703

393 N.Y.S.2d 703

41 N.Y.2d 851, 362 N.E.2d 254

In the Matter of Henry KESSLER, Appellant, v. Chester D. SHERMAN et al., as Justices of the Justice Court Town of Shelter Island, Respondents and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent.

Court of Appeals of New York.

Feb. 15, 1977.

Howard M. Finkelstein and Robert C. Crimmins, Riverhead, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Joseph J. Zedrosser, Samuel A. Hirshowitz and Philip Weinberg, New York City, of counsel), for intervenor-respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed. We agree with the reasons stated by Mr. Justice Margett in the majority opinion at the Appellate Division that the prior prosecution for violating the town ordinance does not bar the prosecution now pending, in which the petitioner is charged with violating the State law (ECL 25--0202). In addition we would note that the two laws differ materially in scope and purpose. The town ordinance is only concerned with the town's interest in local wetlands, while the State law, which applies to a much broader area, seeks to carry out a uniform State policy consistent with the ecology of the State wetlands areas in their entirety.

Indeed, in the State prosecution petitioner is charged with alteration of an area immediately adjacent to a wetland, as well as the wetland itself, which would not be violative of the town ordinance. Moreover, in the State prosecution, he is charged with altering the wetland and adjacent area without a State permit. The lack of a State permit does not violate the town ordinance with which the petitioner was charged in the town complaint, namely, acting without a written permit from the town board.

Thus in our view, separate prosecutions for these separate offenses are authorized by the letter and the spirit of CPL 40.20 (subd. 2, par. (b)).

JONES, Judge (dissenting).

It is not disputed that the State now seeks to prosecute appellant for an offense under State statute based on the same act or criminal transaction that was the predicate for the town offense of which he was acquitted. The majority concludes that the prospective State prosecution in this instance falls within the exception of CPL 40.20 (subd. 2, par. (b)) and accordingly is not prohibited by CPL 40.20. I cannot agree.

Paragraph (b) lays down two requirements. First, each of the potentially duplicative offenses must contain an element which is not an element of the other. This criterion is met inasmuch as absence of a town permit is an element of the town offense but not an element of the State offense, and vice versa. Second, the statuto provisions defining the two offenses must be 'designed to prevent Very different kinds of harm or evil' (my emphasis). While I can agree that it may accurately be said that the State statute differs in operative scope from the town ordinance, I cannot conclude that they are intended or drafted to prevent 'very different' kinds of harm or evil. With only the slightest articulable differences, each proscription has as its objective protection of the ecology of wetlands and thus of adjacent areas. The harm or evil sought to be regulated and contained under the State statute is not substantively different, although it may be of a...