People v. Fremd

• Decision Date: 22 February 1977
• Citation: 393 N.Y.S.2d 331,41 N.Y.2d 372,361 N.E.2d 981
• Parties: , 361 N.E.2d 981 The PEOPLE of the State of New York, Appellant, v. Izak FREMD, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 331

393 N.Y.S.2d 331

41 N.Y.2d 372, 361 N.E.2d 981

The PEOPLE of the State of New York, Appellant, v. Izak FREMD, Respondent.

Court of Appeals of New York.

Feb. 22, 1977.

Morris H. Schneider, Corp. Counsel, Long Beach (Stephen Jenkins, Long Beach, of counsel), for appellant.

Matthew Muraskin, James J. McDonough and Eugene Murphy, Mineola, for respondent.

COOKE, Judge.

The People appeal from an order of the Appellate Term, Ninth and Tenth Judicial Districts, which modified, on the law, a judgment of the City Court of the City of Long Beach, convicting defendant upon a plea of guilty, of violations of the Municipal Code of the City of Long Beach, under an information containing 10 counts, and sentencing him to pay fines totaling $1,050 and to serve two days in jail. The modification consisted in a reduction of the $350 fine imposed at City Court under Count X to $250. The order of Appellate Term should be affirmed, though on a different ground than that considered in its memorandum decision.

The information of a building inspector, in pertinent part, charged that defendant (and another) 'on and from October 21, 1971 to and including April 11, 1972 at premises No. 73 East Chester Street, Long Beach'.

COUNT X

'did wilfully, wrongfully and unlawfully in the first floor apartment of said premises fail to maintain the grounds and structure so as to be free of insects, vermin and rodent harborage and infestation to wit: the basement is infested with roaches in violation of Chap. 10, Art. 11, Section 10--1116 D--1 of the Municipal Code of the City of Long Beach.'

Under the Code of Ordinances of the City of Long Beach, the maximum fine for each violation of any provision of the rehabilitation and conservation code, building code or zoning ordinance of the City of Long Beach, or the commission of any nuisance, is $250. As noted, the fine imposed at City Court was $350 in respect to Count X.

Appellate Term, in modifying, stated that the City of Long Beach was not authorized to adopt an ordinance providing for cumulative penalties for one continuing violation, calling attention to People v. Briary Improvement Corp., 77 Misc.2d 797, 357 N.Y.S.2d 336, affd. 34 N.Y.2d 788, 358 N.Y.S.2d 775, 315 N.E.2d 814 and Incorporated Vil. of Mill Neck v. Fronsdal, 39 A.D.2d 549, 332 N.Y.S.2d 53. Under subdivision 22 of section 20 of the General City Law, subject to the Constitution and general laws of this State, the City of Long Beach is empowered '(t)o regulate by ordinance any matter within the powers of the city, and to provide penalties, forfeitures and imprisonment to punish violations thereof'. Every city is granted the 'power to regulate, manage and control its property and local affairs' and 'all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution' (General City Law, § 19). Under the umbrella of this authority, section 13--10(a) of the Code of Ordinances of the City of Long Beach provides: 'Any person who shall violate any provision of either the property rehabilitation and conservation code, building code or zoning ordinance of the City of Long Beach, or commit any nuisance, shall be guilty of a violation Punishable for each violation by a fine not exceeding two hundred fifty dollars ($250.00), or by imprisonment not exceeding fifteen (15) days, or by both such fine and imprisonment. Each day such violation continues shall constitute a separate violation' (emphasis supplied). The mere fact that the ordinance provides for a separate violation for each day of its continuance does not result in invalidity since, in the absence of a showing of impossibility of compliance, 'the courts have long sustained a pyramiding of penalties as valid means of control' (Oriental Blvd. Co. v. Heller, 27 N.Y.2d 212, 220, 316 N.Y.S.2d 226, 230, 265 N.E.2d 72, 75).

People v. Briary Improvement Corp. (supra), apparently relied upon by Appellate Term, dealt with a sentence imposing a fine of $25 for each of 108 continuous days under a zoning ordinance of the City of Yonkers, a second class city, and held that under section 42 of the Second Class Cities Law such a city was not authorized to adopt an ordinance providing cumulative penalties for one continuing violation. Long Beach is not a second class city (Second Class Cities Law, § 4; 1965 Opns.Atty.Gen. 116; N.Y.Legis. Manual, 1940, p. 1364) and, hence, Briary is not determinative here. Incorporated Vil. of Mill Neck v. Fronsdal (supra), the second decision cited by Appellate Term, was concerned with the power of a village to impose cumulative penalties for a continuous inseparable offense and was predicated on section 93 of the Village Law, the $250 maximum of which 'for each violation' was...