People v. McCarthy

• Citation: 119 Misc.2d 263,462 N.Y.S.2d 965
• Parties: PEOPLE of the State of New York, Plaintiff, v. Glenn C. McCARTHY, Defendant.
• Decision Date: 15 April 1983
• Court: New York Villiage Court

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.

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 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 charged (here Mr. Russo, instead of Mr. McCarthy himself) in-validates the notice. It is undisputed that the notice was not personally served upon defendant; so that, if the receipt of the letter by Mr. Russo cannot be attributed to defendant, the notice requirement of the statute will not have been satisfied.

The portion of the statute dealing with mail service talks only about the "sending" of written notice; it does not refer to receipt of the notice. This may be purposeful, to prevent thwarting of service by the addressee's refusal to sign the return receipt. However, the Court deems the intent of the statute to be that notice must be received by the accused, either in person or by appropriate agent.

To prove receipt, the People rely upon the presumption that a letter properly addressed to the addressee, stamped with sufficient postage and deposited in a mailbox or post-office, is deemed to have been received by the addressee within a reasonable time thereafter. Trusts and Guarantee Company v. Barnhardt, 270 N.Y. 350, 1 N.E.2d 459 (1936). See also: Oregon Steamship Co. v. Otis, 100 N.Y. 446, 3 N.E. 485 (1880), dealing with telegrams. The presumption is grounded upon the recognized probability that government officers, such as postal authorities, will perform their duties properly. New Syndicate v. Gatti Paperstock Corp., 256 N.Y. 211, 176 N.E. 169 (1931). The presumption is rebuttable; but definitive evidence that the letter was not actually received is required to defeat the presumption. Aetna Insurance Co. v. Millard, 25 A.D.2d 341, 269 N.Y.S.2d 588 (3d Dept. 1966). See also: In re Will of Greenspan, 43 A.D.2d 998, 352 N.Y.S.2d 263 (3d Dept. 1974).

At bar, defendant has not offered any evidence to rebut the presumption. The People's evidence, moreover, corroborated the facts of the mailing and of the receipt at defendant's address. The only open issue, then, is whether the receipt by Mr. Russo constitutes a sufficient receipt on behalf of defendant to satisfy the statute. The Court finds that it does under the facts of this case. Mr. Russo was a sufficient agent of defendant for the purpose of receiving the letter, regardless of whether he was defendant's agent in other capacities and for other purposes.

There is no evidence that Mr. Russo was the express agent of the defendant, particularly for purposes of receiving notices such as the letter. The question here, rather, is whether an agency can be implied from the words and conduct of the parties in light of the surrounding circumstances. 2 NY Jurisprudence, Agency § 24 at 207.

The test of an implied agency is whether such an implication of authority "is natural and reasonable" under the particular circumstances presented, and, if so, whether the principal "is responsible" for the circumstances giving rise to the implication....