People v. McCarthy

CourtNew York Villiage Court
Citation119 Misc.2d 263,462 N.Y.S.2d 965
Decision Date15 April 1983
PartiesPEOPLE of the State of New York, Plaintiff, v. Glenn C. McCARTHY, Defendant.

Page 965

462 N.Y.S.2d 965
119 Misc.2d 263
PEOPLE of the State of New York, Plaintiff,
v.
Glenn C. McCARTHY, Defendant.
Village Court of Muttontown,
Nassau County.
April 15, 1983.

Page 966

Joseph R. Carrieri, Village Prosecutor, Jericho, for plaintiff.

Leonard L. Horn, Huntington, for defendant.

Opinion

MARTIN I. KAMINSKY, Village Justice.

Defendant is charged with zoning violations, arising from work done, allegedly without a required building permit, on the stable at premises which he owns within the Village of Muttontown. The evidence at the trial proved the charges beyond a reasonable doubt.

At the conclusion of the trial, defendant moved to dismiss the case on the ground that he did not receive a copy of the charges against him, and thus did not have proper notice of the alleged violation. Defendant also contends that, in any event, the pertinent village ordinance is unduly vague and, therefore, is unconstitutional.

I.

Notice of charges

The attorneys for the Village mailed a letter to the defendant, via certified mail, return-receipt requested, under date of December 3, 1981 (Defendant's Exhibit C). It stated that the defendant was being charged with having "enlarged and altered a building containing stables, or permitted the same to be done on the above property, without filing the necessary surveys with the Building Inspector and obtaining a building permit as required by the Village building zone ordinance." The letter continued with an admonition that, if appropriate corrective action were not taken by defendant "within ten days of receipt of this letter", the Village would commence enforcement proceedings against defendant, and that "every day the violation continues, after you have been provided with notice thereof, constitutes a separate violation and that you could be fined up to a maximum of $250 for each separate violation."

The issue of proper notice of the alleged violation turns upon the sufficiency of that letter. The prosecution proved at trial that the letter was, in fact, mailed, by certified mail, return-receipt requested, addressed to the defendant at 2216 State Route 106, Syosset, New York 11791, and that that is the residence of the defendant. The evidence

Page 967

further established that the letter was received at that address by one J. Russo on December 4, 1981. The Village Building Inspector, Joseph Frye, testified that he had met a J. Russo on the premises earlier in 1981, at which time Mr. Russo was doing work there (indeed, on the stable in question). The letter, thus, was received at defendant's residence by a person who, at least at one time, had done work for defendant at the premises.

There appears to be no authority squarely in point on what constitutes proper service of notice of a violation of the type here at issue. Apt analogy may be had, however, to questions of notice and knowledge in other areas of the law. For example, CPLR 308(2), permits service of civil process upon "a person of suitable age and discretion at the ... usual place of abode of the person to be served", when coupled with mail service.

Defendant argues that the notice and service here were insufficient because "knowledge of the underlying fact which renders one's act criminal is generally essential to conviction", citing Morissette v. U.S., 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) and People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267 (1981). Defendant interprets this rule to mean that the People were required to show that he himself actually received the letter in question if the People wished to establish that he had sufficient knowledge of the alleged violation. *

The pertinent provision of the statute, Building Zoning Ordinance Art. 10 § 10.2(B), which deals with the notice requirement, provides as follows:

"If any said person fails to obey any such violation of this ordinance within five (5) calendar days after written notice has been served personally upon said person, or within ten (10) days after written notice has been sent to said person by Registered Mail at said person's home or business address, said person shall be subject to a civil penalty of $250.00 for each and every day said violation continues, recoverable by suit ..."

Although the statute refers only to "registered mail", the Court finds that dispatch via certified mail is essentially the equivalent of registered mail, and will satisfy the statute. Both such forms of mail assure recordation by the postal officials of the actual dispatch and, where return receipt is requested, of the receipt of the matter being mailed. In this case, mailing via certified mail, return-receipt requested, achieved that purpose; so that there is no doubt regarding the fact of the mailing or the actual delivery of the letter in question to the defendant's residence.

The question before the Court is, rather, whether the receipt of the letter by someone other than the person...

To continue reading

Request your trial
1 practice notes
  • People v. Kleber
    • United States
    • New York Justice Court
    • February 8, 1996
    ...1323-24, 12 L.Ed.2d 377. Accord: Bakery Salvage Corp. v. City of Buffalo, 175 A.D.2d 608, 609, 573 N.Y.S.2d 788; People v. McCarthy, 119 Misc.2d 263, 268, 462 N.Y.S.2d 965. Where those standards are not met, the ordinance must be declared unconstitutionally vague under the void-for-vaguenes......
1 cases
  • People v. Kleber
    • United States
    • New York Justice Court
    • February 8, 1996
    ...1323-24, 12 L.Ed.2d 377. Accord: Bakery Salvage Corp. v. City of Buffalo, 175 A.D.2d 608, 609, 573 N.Y.S.2d 788; People v. McCarthy, 119 Misc.2d 263, 268, 462 N.Y.S.2d 965. Where those standards are not met, the ordinance must be declared unconstitutionally vague under the void-for-vaguenes......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT