People v. Bonnerwith

• Decision Date: 26 March 1972
• Citation: 69 Misc.2d 516,330 N.Y.S.2d 248
• Parties: PEOPLE of the State of New York, Plaintiff, v. Oliver BONNERWITH, Defendant.
• Court: New York Justice Court

Page 248

330 N.Y.S.2d 248

69 Misc.2d 516

PEOPLE of the State of New York, Plaintiff, v. Oliver BONNERWITH, Defendant.

Town Justice Court, Town of Rhinebeck, Dutchess County.

March 26, 1972.

Carl P. Ulrich, Poughkeepsie, for plaintiff.

William Ciolko, Public Defender (David Goodman, Poughkeepsie of counsel), for defendant.

DECISION

HERMAN H. TIETJEN, Town Justice.

Defendant is charged with violation of the Town of Rhinebeck Zoning Law entitled Local Law #1 for the Town of Rhinebeck for the year 1971 in regard to the storage and sale of motor vehicles in an area zoned against this use. Defendant pleaded not guilty to the charge and brings before this Court a motion asking the following relief: (1) to dismiss all charges on the ground that the statute pursuant to which he has been arrested is unconstitutional because it provides for a penalty if convicted of a sentence of imprisonment for a period of not more than six months and (2) that this writer should disqualify himself as judge on the ground that he 'may be too familiar with all the witnesses on the People's side.'

Local Law #1, Supra, § 422 states: 'Any person, firm or corporation who violates, disobeys, neglects or refuses to comply with or resists the enforcement of any of the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than $50.00 or imprisonment for a period of not more than six months or both so fined and imprisoned for each offense.'

Defendant alleges that the above section is unconstitutional because it fails to provide for a jury trial. In order to determine whether defendant is correct a number of considerations must be made: (a) Whether Local Law #1, Supra, § 422 is consistent with the Town Law, and if it is not, whether the Town Law prevails; (b) Whether a breach of a Zoning Law is an unclassified misdemeanor or a violation under the present Penal Law; (c) whether under prior or current law defendant would have been entitled to a jury trial?

Local Law #1, Supra, § 422 uses the term 'misdemeanor' rather than 'offense' as found in Town Law § 268(1) and § 135(1)(2). In all other respects the Local Law and the Town Law are in general conformity. Since the local law is inconsistent with the Town Law in relation to the designation given to a breach of the Zoning Law, which of these laws prevail? Town Law § 268(1) is part of Article 16 of the Town Law. This article generally outlines the procedures and organization to be followed by local government in regards to zoning. In addition, it also prescribes the maximum penalty which a town may establish for breach of its zoning law. Where a town by local enactment exceeds the State Law, the State Law will prevail, see People v. Gerus, 19 Misc.2d 389, 69 N.Y.S.2d 283 (County Ct.1942). In this instance, the Town Law has exceeded the State Law by classifying a breach of the Zoning Law as a 'misdemeanor' rather than an 'offense', and the State Law must therefore prevail.

The next question to be answered is: Assuming the State Law prevails, is a breach of the Zoning Law a crime, petty offense or other under current law and under prior law? The Legislature amended Town Law § 268(1) and § 135(1)(2) in 1958 (Laws of 1958 c. 606) when it inserted the word 'offense' in place of the word 'misdemeanor' and added an additional sentence which specifies clearly that for enforcement purposes only, a breach of a Zoning Law should be deemed a misdemeanor, however, for the purpose of conviction, a violation of Zoning Law would be deemed to be an offense.

It is necessary to consider the term 'offense' as it applied in 1958 and prior to the revised Penal Law (Laws of 1965, c. 1046). It was said by one Court in Matter of Wickham v. Pafumi, 45 Misc.2d 344, 256 N.Y.S.2d 868 (Sup.Ct.1965) to be an unlawful act which 'not amounting to a crime,' as defined in the Penal Law of 1909, 'but which by statute carries with it a penalty similar to those imposed by law for the punishment of a crime.' A review of the old Penal Law § 2(6) defined 'crime' as a felony or a misdemeanor. Furthermore, a misdemeanor was said to include 'any other crime.'

The question thus becomes, did the term 'offense' as found in Town Law § 268(1) as amended in 1958 mean a crime as it was then understood or did it have some other connotation. This Court concludes that it was the Legislature's intent to remove a breach of a Zoning Law from the classification of being a crime and make it a quasi criminal breach of the law which is now known as a violation. This conclusion is supported by the nature of the amendment made in 1958 because the Legislature added an additional sentence setting forth for enforcement purposes only the proviso that those rules applying to the enforcement of crimes designated a misdemeanor would apply in this instance but for conviction purposes and record purposes, a breach of a Zoning Law would not be considered a crime. The Legislature had no other choice under the prevailing definition. Therefore, a breach of a zoning law was prior to the adoption of the revised Penal Code not a crime despite the penalty provided for the breach.

The revised Penal Law established a different classification for unlawful acts, see Penal Law § 10.00. The word 'offense' took on a new meaning under the revised Penal Law, a meaning wholly unlike the former definition, in fact, the term 'violation' replaces the connotation formerly given to 'offense'. It is necessary to determine whether Town Law § 268(1) should now be classified as an 'unclassified misdemeanor' or 'violation' as set forth in Penal Law § 55.10. This problem will frequently confront the Courts as it becomes necessary to construe the effect of other sections contained in the statutes of this State relating to specific laws, see People v. Rodman, 65 Misc.2d 123, 316 N.Y.S.2d 887 (Criminal Ct.1970) and the Court will have to choose between Penal Law § 55.10(2)(c) and § 55.10(3)(b). Penal Law § 5.00 sets forth a general rule that a Penal statute is not to be strictly construed but rather construed 'according to the fair import of their terms to promote justice and effect the objects of the law.'

When one reads the penalty provisions of Town Law § 268(1), i.e.: up to $50.00 fine or up to six months in jail, or both, one is lead to interrupt this to be classified as an 'unclassified misdemeanor.' However, when one considers the meaning of 'offense' as it was understood prior to the enactment of the revised Penal Law and the very nature of the amendment made to the Town Law in 1958, one can say that despite the fact that Town Law § 268(1) did provide a term of imprisonment for in excess of fifteen days, a violation of a Zoning Law was in fact not to be considered a crime but rather to be considered an offense of a grade less than a misdemeanor.

Taking into consideration the admonishment provided in Penal Law § 5.00 that the ends of justice and objectives of the law should be considered in construction of the Penal Law and Penal statutes, this Court would classify a breach of the zoning laws to be a violation within the meaning of Penal Law § 55.10 rather than a 'unclassified misdemeanor' for the following reasons: (a) it clearly appears that the Legislature intended to reduce a breach of a zoning law from being a crime to a quasi criminal offense; (b) zoning violations and zoning itself is essentially a civil matter just as most vehicle and traffic violations, although criminal procedures and forms are applied; (c) Appellate Courts would tend to view a breach of a zoning law as a violation below the grade of misdemeanor rather than being a misdemeanor. Therefore, this Court is of the opinion that both prior to the enactment of the revised Penal Law and subsequent to its enactment, defendant would not be entitled to a trial by jury.

In regard to this motion it is also necessary to consider the Supreme Court's decision in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) which laid to rest the question of whether a defendant in a situation such as this is entitled to trial by jury. Taking a purely objective approach, the Supreme Court decided that where the statute does not provide a jail term in excess of six months, the breach of law is considered 'petty' and not 'serious,' and there would be no constitutional right to trial by jury, see 399 U.S. at 68, 90 S.Ct. 1886. The Court used the 'near-uniform judgment of the Nation' theory to justify its 'objective criterion' approach. Town Law § 268(1) does fall within the 'near-uniform judgment' theory and certainly was one of the types of statute to which the Court addressed itself. Therefore this Court is of the opinion that even absent the considerations which were given above, on the authority of Baldwin alone, defendant would not be entitled to a jury trial. As one additional consideration which this Court wishes to interpose, violations of zoning laws often involve technical questions of fact, local law or ordinance, which are best resolved by a Court without jury. In view of this, it would appear logical that zoning cases should be heard before a Court without a jury.

Defendant also moves that this writer not hear the case since he 'may be too familiar with all the witnesses on the People's side,' and this case should be either transferred to another Justice of this Court or to an adjoining Town Court. The charge of bias or prejudice on the part of a Judge has become frequently used and requires careful examination. Defendant does not set forth any of the names of the witnesses which this Court should be 'familiar with' and thus this writer is only able to make a general determination.

A Town Justice Court is one of original jurisdiction over infractions, violations and misdemeanors occurring within its jurisdiction, CPL §§ 10.20, 10.30, 20.50. This is especially true in regard to zoning law violations, Mann v. Town of...