People v. Kleber

Decision Date08 February 1996
Citation168 Misc.2d 824,641 N.Y.S.2d 488
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Dennis KLEBER, Defendant.
CourtNew York Justice Court

Payne, Wood & Littlejohn, Mineola (Daren A. Rathkopf, of counsel), for defendant.

Joseph R. Carrieri, Village Prosecutor of Village of Muttontown, Mineola, for plaintiff.


Before the Court is defendant's motion to dismiss the Information herein, on the grounds that the People have not brought the case to trial in the speedy fashion provided for in § 30.30 of the Criminal Procedure Law and that § 1420.04 of the General Ordinance of the Village of Muttontown is unconstitutional. The motion raises novel and complex issues, including: (1) whether such a village ordinance is subject to the Speedy Trial Act and (2) how to reconcile and apply prior decisions over the constitutionality of noise and related public nuisance ordinances. For the reasons stated below, the Court denies the first branch of the motion, but grants the second branch.

The People have brought this action, on the complaint of Michael Tafreshi, a resident of the Village of Brookville, whose property is located adjacent to the Hav-A-Home Kennel, which is located in the Village of Muttontown. The kennel is owned by defendant Dennis Kleber. The People contend that the kennel is responsible for "loud and frequent barking noises" (referring to the dogs housed at the kennel), in violation of the ordinance, which prohibits "the keeping of any animals which by causing frequent or long continued noise shall disturb the comfort or repose of any person or persons in the vicinity". 1

As a threshold matter, the People ask the Court to defer passing on the constitutionality of the ordinance, and to leave that matter for an appellate court to determine at the conclusion of this proceeding. The Court declines to do so. Where, a defendant believes he or she has a legitimate constitutional objection to a statute or ordinance, the defendant has the right to raise that objection at any time, particularly where, even if he is not being proceeded against criminally, the matter is being prosecuted in a criminal forum. See e.g., CPL 170.30(1)(a); 170.35(1)(c); accord; People v. One Adams Blvd. Realty Corp, NYLJ 10/19/94 [Dist.Ct.Suffolk Co.]; DeLeyer v. Town of East Hampton, NYLJ 8/22/80 [Sup.Ct.Suffolk Co.]. However, if possible, the Court should avoid making determinations on constitutional grounds, where non-constitutional grounds will suffice to determine the issues. Comiskey v. Arlen, 43 N.Y.2d 696, 698, 401 N.Y.S.2d 200, 372 N.E.2d 34; People v. Furlong, 129 Misc.2d 938, 494 N.Y.S.2d 653. Thus, the Court should first determine whether CPL 30.30, applies to claims under the Muttontown Village General Ordinance, and (if so) whether the Speedy Trial Act has been violated here.

CPL § 30.30, the Speedy Trial Act, provides a statutory mandate, as opposed to constitutional requirements, 2 for the prompt trial of criminal prosecutions and certain other proceedings, in order to assure that the People diligently bring such cases to a prompt conclusion, that defendants are not left to languish in jail or otherwise unreasonably subjected to the yoke of criminal charges, and that their ability to defend against such charges is not impaired by undue delay. People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228; People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, 267 N.E.2d 263, cert. den., 402 U.S. 924, 91 S.Ct. 1398, 28 L.Ed.2d 663; People v. Bratton, 103 A.D.2d 368, 480 N.Y.S.2d 324, affd, 65 N.Y.2d 675, 491 N.Y.S.2d 623, 481 N.E.2d 255. The Speedy Trial Act is intended for the benefit of defendants, and should be liberally construed in their favor. People v. Wrightstone, 88 Misc.2d 824. 3

The relevant subdivision of CPL § 30.30 at bar is subsection 1(d) which provides that a motion to dismiss under CPL §§ 170.30(1)(e) or 210.20(1)(g) "must be granted where the people are not ready within ... thirty days of commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime." As is apparent from the statutory language, the first question to be addressed is whether a case charging a violation of § 1420.04 of the General Ordinance constitutes a criminal action; if so, CPL § 30.30(1)(d) plainly is not applicable. Basic rules of statutory construction guide the Court's analysis. The Court's function is, of course, to fulfill the intent of the Legislature; and the starting point in attempting to do so is the language of the statute or ordinance itself, Landreth Timber Co. v. Landreth, 471 U.S. 681, 686, 105 S.Ct. 2297, 2301-02, 85 L.Ed.2d 692; Matter of State by Abrams v. Ford Motor Co., 74 N.Y.2d 495, 500, 549 N.Y.S.2d 368, 548 N.E.2d 906. Unambiguous words in a statute or ordinance should ordinarily be given their plain meaning, Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539; Doctors Council v. NYC Employees Retirement System, 71 N.Y.2d 669, 674-75, 529 N.Y.S.2d 732, 525 N.E.2d 454. But that is only true in the absence of a statutory definition, FDIC v. Meyer, 510 U.S. 471, 475-477, 114 S.Ct. 996, 1000-01, 127 L.Ed.2d 308, 317; Smith v. U.S., 508 U.S. 223, 228-31, 113 S.Ct. 2050, 2053-55, 124 L.Ed.2d 138, 148-49; and such statutory definitions can be looked for and found in the other parts of the statute under the rubric that "a word is known by the company it keeps", i.e., the doctrine of noscitur a sociis. Gustafson v. Alloyd Co., 513 U.S. 561, ---- - ----, 115 S.Ct. 1061, 1069-70, 131 L.Ed.2d 1, 15; Jarecki v. G.D. Searle & Co., 367 U.S. 303, 304, 81 S.Ct. 1579, 1580, 6 L.Ed.2d 859; see also: Thoreson v. Penthouse Internat'l, 80 N.Y.2d 490, 496-97, 591 N.Y.S.2d 978, 606 N.E.2d 1369, rearg. den., 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298. Where the statute itself does not contain such definitions, resort may and should be had to other statutes that are part of the same statutory scheme. Gustafson, 513 U.S. at ---- - ----, 115 S.Ct. at 1070-71, 131 L.Ed.2d at 16-17; see also Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119; Anglin v. Anglin, 80 N.Y.2d 553, 558, 592 N.Y.S.2d 630, 607 N.E.2d 777; Lower Manhattan Loft Tenants v. New York City Loft Board, 66 N.Y.2d 298, 304, 496 N.Y.S.2d 979, 487 N.E.2d 889; Mtr. of Roballo v. Smith, 99 A.D.2d 5, 7, 471 N.Y.S.2d 433, affd, 63 N.Y.2d 485, 483 N.Y.S.2d 178, 472 N.E.2d 1006. Finally, the Court must avoid giving words meanings that render them redundant of other words in the same statute or ordinance (e.g., "offense" and "violation" here), and rather assume that the Legislature had something in mind when it chose to use such different words. U.S. v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615; see also Gustafson v. Alloyd Co., 513 U.S. at ---- - ----, 115 S.Ct. at 1069-70, 131 L.Ed.2d at 15.

One recent case, People v. Vancol, 166 Misc.2d 93, 631 N.Y.S.2d 996, has reasoned, and another, People v. Zulli, 165 Misc.2d 190, 628 N.Y.S.2d 476, has assumed, that municipal zoning ordinances are subject to CPL § 30.30(1)(d). Based on the facts that the defendant is arraigned and the People prosecute the action under the Criminal Procedure Law, the Court in Vancol concluded that, "a violation of a municipal ordinance is to be considered a criminal offense", and then proceeded to apply CPL § 30.30(1)(d) to the case 631 N.Y.S.2d at 998. Neither Vancol or Zulli addressed the kind of ordinance here; and both are, thus, distinguishable. Moreover, the Court believes that both cases proceed on an erroneous premise as to the scope of the statute. Vancol appears to misread the statute by applying it to a criminal ordinance; whereas, CPL § 30.30(1)(d) expressly provides that it applies only where the violation charged is not a criminal offense (i.e., "none of which is a crime"). Thus, if a violation of § 1420.04 is a crime, CPL 30.30(1)(d) by its terms does not apply, and defendant's motion to dismiss under it must be denied.

Not every matter that comes before this Court is necessarily a criminal matter for the purposes of CPL § 30.30, even though the procedures followed as to it may be essentially those of a criminal action. To determine whether the village ordinance here prescribes a "crime", further analysis of the statutory definitions is necessary. The CPL does not contain definitions of the terms at issue here. However, the Penal Law, which is part of the same statutory scheme, does, and thus may and should be consulted here, under the rubric that statutes which are in pari materia should be read together. Tenney v. Liberty News Distributors, 13 A.D.2d 769, 215 N.Y.S.2d 661; see also, People v. McLeod, 150 Misc.2d 606, 610, 570 N.Y.S.2d 431; People v. Guthman, 75 Misc.2d 572, 575, 348 N.Y.S.2d 109; People ex rel. Devore v. Warden, 40 Misc.2d 943, 945, 244 N.Y.S.2d 505, so ruling with respect to other criminal and court statutes. Indeed, case law in analogous situations holds that the definitions in Penal Law § 10.00 control for the purposes of inquiries under CPL § 30.30. People v. Howell, 158 Misc.2d 653, 654 n*, 601 N.Y.S.2d 778; People v. Zagorsky, 73 Misc.2d 420, 423, 341 N.Y.S.2d 791. Penal Law § 10.00 also suggests that is so, providing that, "except where different meanings are expressly specified" in the statute, the definitions in that section shall apply. Since there are no other such express definitions here, the Court will look to Penal Law § 10.00(1), (3) and (6) for the applicable definitions of the terms as used in CPL § 30.30(1)(d).

Based on the Penal Law's definitions, the Court concludes that a violation of the ordinance at bar is not a "criminal" offense. It is true, on the one hand, that such a...

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