People v. Beecher

• Decision Date: 29 January 1992
• Citation: 580 N.Y.S.2d 980,153 Misc.2d 247
• Parties: PEOPLE of the State of New York v. Aaron BEECHER, Defendant.
• Court: New York Justice Court

Page 980

580 N.Y.S.2d 980

153 Misc.2d 247

PEOPLE of the State of New York v. Aaron BEECHER, Defendant.

Justice Court, Village of Valley Stream Nassau County.

Jan. 29, 1992.

Howard G. O'Rourke, Village Prosecutor, Valley Stream, for People.

Kovit & Kovit, P.C. by Charles S. Kovit, Hewlett, for defendant.

ROBERT G. BOGLE, Village Justice.

Motion of the defendant, Aaron Beecher, by counsel, to dismiss the Information before this Court, is determined as hereinafter provided.

The defendant is the owner of real property situated at 290 West Merrick Road, on the corner of Central Avenue and Merrick Road, a major business intersection, in the Incorporated Village of Valley Stream, County of Nassau, New York. Located at the property is a small building which had been used as a pub/restaurant. However, over the last several years, the restaurant has been closed and the premises is presently vacant.

On April 4, 1991 the defendant filed an application for a Village Permit to renovate the facility for use as a take-out fast food restaurant. The matter was referred to the Village Planning Board for review of the site development plan. The Planning Board denied the application. Thereafter, the defendant filed a Petition pursuant to Article 78 of the C.P.L.R. to overturn the Board's decision. By Order of the Supreme Court dated January 8, 1992 the Court overturned the Planning Board's ruling and directed the Village to issue to the defendant the appropriate permits.

The defendant is now charged with a violation of several provisions of the code of the Village of Valley Stream, to wit: failure to maintain property free of litter and debris and failure to maintain the premises in good repair.

Following arraignment and the entering of a plea of not guilty, the defendant, by counsel, now moves to dismiss the charges pending before the Court.

The motion of the defendant requests a dismissal of the case based upon three specific grounds (1) that the statute is unconstitutional and is therefore void for vagueness; (2) that the informations filed with the Court are legally insufficient accusatory instruments and must be dismissed as a matter of law; and (3) That the action must be dismissed in the interest of justice. The prosecution opposes each of the defendant's arguments, and requests that the motion be denied.

The following is the determination of the Court.

I

The defendant is charged with a violation of Section 64(4) and (5) of the Village Code of the Village of Valley Stream. These Sections mandate certain standards of property maintenance:

Sec. 64-4. Maintenance of Buildings and Structures Required.

Every building or structure within the Village of Valley Stream, including every foundation, floor, wall, ceiling, door, window, roof or other part thereof, shall be maintained in good repair.

Sec. 64-5 Protection of exposed surfaces.

All exposed surfaces susceptible to decay shall be kept at all times painted or otherwise provided with a protective coating sufficient to prevent deterioration.

The defendant is also charged with a Violation of Section 50(12) of the Village Code, which requires real property to be kept free of litter and debris.

The defendant moves to dismiss the charges under C.P.L. 170.30(1)(a) and C.P.L. 170.35(1)(c) on the grounds that these statutes are unconstitutionally vague and indefinite and accordingly are void as a matter of law. The prosecution opposes the motion on the grounds the statute is not vague or indefinite and exceeds all Federal and State constitutional due process requirements.

Village ordinances, like all legislative enactments, start with a strong presumption of constitutionality. People v. Perkins, 150 Misc.2d 543, 544, 576 N.Y.S.2d 750 (Sup.Ct.App. Term Second Dept.1991); Huntington v. Park Shore Country Day Camp, Inc., 47 N.Y.2d 61, 416 N.Y.S.2d 774, 390 N.E.2d 282 (1979). This presumption is overborne when the provision is demonstrated to be invalid beyond a reasonable doubt. People v. Lang, 36 N.Y.2d 366, 370, 368 N.Y.S.2d 492, 329 N.E.2d 176 (1975); People v. Burton, 150 Misc.2d 214, 221, 569 N.Y.S.2d 861 (Sup.Ct. Bronx Co., 1990).

It has been held that it is legitimate and constitutional to have as a governmental objective the preservation of residential appearance of a community and for the maintenance of its property values. In other words, a Statute, though based on what may be termed aesthetic considerations, will be constitutional if it proscribes conduct which offends sensibilities and tends to debase the community and reduce real estate values. People v. Stover, 12 N.Y.2d 462, 466, 240 N.Y.S.2d 734, 191 N.E.2d 272 (1963). In Stover for example, the Court of Appeals declared a city ordinance which prohibited clotheslines in front yards a proper constitutional objective of a Government's police power to promote "aesthetic considerations", as well as health and safety considerations. Stover, supra at 467, 240 N.Y.S.2d 734, 191 N.E.2d 272. In the case at bar, the Village Ordinance's legislative findings under Section 64-1 established the purpose of the ordinance to "foster the health, safety and welfare" and to "maintain the neighborhood and property values." The Village Code requirements of property maintenance and keeping structures painted or covered in a protective coating clearly fit into these legislative findings. Therefore, the Village Ordinances are based on sound governmental objectives and pass Constitutional muster.

Since this Court has now determined the statutory objectives are constitutional, the next step shall be to examine if the actual wording of the statute meets constitutional standards. Specifically, the defendant objects to the use of the term "in good repair" as it relates to property maintenance. The defendant contends such provisions are vague, overbroad and depend unfairly on the subjective interpretation of the complainant/building inspector.

A challenge to a statute's vagueness will usually involve a two-part analysis. First, it must be determined whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. People v. Nelson, 69 N.Y.2d 302, 307, 514 N.Y.S.2d 197, 506 N.E.2d 907 (1987). Second, the statute must provide explicit standards to be applied, and should not be dependent upon the subjective conclusions of a complainant or an arresting officer as to what would constitute the violation. People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (1978), Nelson, supra, 69 N.Y.2d at 308, 514 N.Y.S.2d 197, 506 N.E.2d 907. In sum, "the test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him." People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 215 N.E.2d 345 (1966).

The defendant contends the statute is unconstitutional on the grounds that the phrase "in good repair" is vague and indefinite and that the statutory requirement of having a building painted or covered in a protective coating is too subjective and places too much discretion in the hands of the complaining code enforcement officer.

The statutory term "in good repair" is not incapable of definition and is not a phrase which the common sense of a reasonable person would not comprehend. It is equally true that a person of ordinary intelligence would be capable of recognizing if a premises would need painting or a protective coating. Statutes cannot be drafted with exact precision but may nevertheless use terms which the public would recognize as conduct to be avoided. These terms include "unreasonable noise." People v. Bakolas, 59 N.Y.2d 51, 53, 462 N.Y.S.2d 844, 449 N.E.2d 738 (1983) and subscribing medication in the absence of "good faith." People v. Kass, 32 N.Y.2d 856, 857, 346 N.Y.S.2d 274, 299 N.E.2d 685 (1973). In both those cases, as in the case at bar, the statutes satisfy the appropriate constitutional criteria.

II

The defendant also moves to dismiss the Informations on the grounds they are insufficient as a matter of law and therefore, must be dismissed as defective under C.P.L. 170.30(1)(a) and 170.35.

An Information is defective if it fails to meet the requirements of Sections 100.15 and 100.40 of the Criminal Procedure Law. The Sections of the C.P.L. mandate that (1) each Information must contain an accusatory section specifying the offenses charged, (2) each Information must contain a factual part...