People v. Muttontown Acres LLC
| Citation | 964 N.Y.S.2d 61,37 Misc.3d 1202,2012 N.Y. Slip Op. 51854 |
| Decision Date | 20 September 2012 |
| Docket Number | No. 11070037.,11070037. |
| Parties | The PEOPLE of the State of New York, v. MUTTONTOWN ACRES LLC, Defendant. |
| Court | New York Justice Court |
OPINION TEXT STARTS HERE
Thomas J. Mullaney and Catherine Price of Leventhal, Sliney & Mullaney LLP, Roslyn, NY, for the People.
John C. Farrell of Sahn, Ward, Coschignano & Baker PLLC, Uniondale, NY, for Defendant.
Defendant Muttontown Acres LLC is accused of violating Local Law 5 of 2006 and General Code § 172–3A(1) [collectively the “Tree Ordinance”] at 225 Eastwoods Muttontown Road in the Village of Muttontown, Long Island, New York on June 23, 2011 by cutting down 3 large trees without a permit. The Tree Ordinance requires such a permit for tress which have greater than a prescribed size, measured by the circumstance and diameter of each tree.
Defendant has moved to dismiss the charge on the grounds, viz. that: [1] the accusatory instrument is allegedly “insufficient on its face”, [2] the facts and evidence were allegedly “gathered during an illegal search” in violation of its constitutional rights; and [3] the “interests of justice” warrant dismissal.
Criminal Procedure Law § 100.40 requires that the Verified Information and Supporting Deposition [jointly, the “Accusatory Instrument”] state facts which, if proven, make out a prima facie case against the defendant. That, the statute requires, must be done with “non-hearsay allegations” of fact which provide “reasonable cause to believe that the defendant committed the offense charged” and “establish, if true, every element of the offense charged and the defendant's commission thereof”. CPL § 100.15 further provides that, to be sufficient, the Accusatory Instrument must allege “facts of an evidentiary character supporting or tending to support the charges”. As the Court of Appeals explained in People v. Jones, 9 NY3d 259, 262:
Accord People v. Alejandro, 70 N.Y.2d 133, 137.
When passing on a motion to determine if those requirements have been met, the court “is limited to reviewing the facts as they are set forth in the four corners of the accusatory document”. People v. All State Properties LLC, 29 Misc.3d 201, 207;People v. Voelker, 172 Misc.2d 564. See also People v. Casey, 95 N.Y.2d 354.
If the Accusatory Instrument does not meet the requirements of CPL § 100.40, it must be dismissed. People v. Caravousanos, 2 Misc.3d 7 (App Term); People v. Varricchio, 26 Misc.3d 656, 658–59;People v. Riverdale Equities, 148 Misc.2d 818. Indeed, as explained in Jones, 9 NY3d at 262, a “failure to assert sufficient [the requisite] non-hearsay factual allegations is a jurisdictional defect”, and thus fatal to the charge. Accord Alejandro, 70 N.Y.2d at 134–35. See, e.g., People v. Castanza, 24 Misc.3d 134A, 890 N.Y.S.2d370, 2009 N.Y. Slip Op 51416, 2009 WL 1911912 (App Term).
In the Verified Information at bar, Edward Hauser, the Village Code Enforcement Officer, states that he visited defendant's property and “observed that the defendant did permit three trees to be cut down” [Verified Information ¶ 3]. In his Supporting Deposition, Anthony Toscacno, the Village Arborist, states that he examined the cut trees on the same day and found them to be of the size, indeed in excess of the size, for which the Tree Ordinance provides that a permit is required. The People contend that these two instruments taken together (i.e. the “Accusatory Instrument”) allege facts of an evidentiary nature creating reasonable cause to believe that defendant violated the Tree Ordinance as charged, and thus is legally sufficient to assert the charge against defendant.
Defendant contends, to the contrary, that the Accusatory Instrument fails to include prerequisites of Muttontown General Code § 172–3A(1). Section § 172–3A(1) provides that:
“It shall be unlawful for any person to remove, cut down, destroy or substantially alter a tree or other protected vegetation located within the Village, living and dead, in any of the following categories, unless a permit has been obtained pursuant to this chapter:....”
Defendant contends that the Accusatory Instrument here fails to state that defendant ... actually cut down the trees in question, or otherwise removed, destroyed or substantially altered the specified trees, but rather alleges only that defendant “permitted” the trees to be cut down.
Responding, the People point out that General Code § 172–7(B), as amended by Local Law 5 of 2006 () provides:
“It is a rebuttal presumption, for the purpose of enforcing this chapter that the owner on whose land any tree has been removed, cut down, destroyed, or substantially altered without the necessary permit is the person responsible for performing or permitting the act complained of.” (emphasis added)
The People say that General Code § 172–3A(1) must be read in conjunction with Local Law 5 of 2006; and, when that is done, a violation of the Tree Ordinance has been sufficiently alleged.
The People are correct. The Tree Ordinance must be read in conjunction with the Local Law. Both were cited in the Accusatory Instrument; moreover, they are inter-related. Hence, both provisions must be read together in determining the full statutory content, context, and legislative intent. Levine v. Borenstein, 4 N.Y.2d 241 (). Accord Statutes § 93 and § 130 (). See, e.g., People v. Heaney, 31 Misc.3d 1216A, 2011 N.Y. Slip Op 50695U, 927 N.Y.S.2d 818; People v. Greenfield, 9 Misc.3d 1113A, 2005 N.Y. Slip Op 51518U, 808 N.Y.S.2d 919.
Local Law 5 states disjunctively that a rebuttable presumption of a violation exists as to either “performing” or “permitting” the conduct prohibited. Here, as noted, the Code Enforcement Officer states, on first-hand knowledge, that, upon visiting the property he “observed” that the defendant “did permit three trees to be cut down”, and that he therefore concluded that defendant had committed a “violation of Local Law 5 of 2006”. That allegation of “permitting”, together with the other alleged facts in the Accusatory Instrument, suffices to state a prima facie case that the defendant committed the offense charged. Exactly what defendant did and whether the People can prove a violation are matters for later proceedings, including (if needed) a trial.
The Court also rejects defendant's alternative or further argument that the Accusatory Instrument is insufficient since it fails to show, in defendant's words, “defendant's relationship to the premises”. Such a relationship is not a term of the Tree Ordinance, and thus is not a requirement of the charge. People v. Bogal, 23 Misc.3d 130 (App Term), relied on by defendant for this argument, is not in point. There, the defendant was charged with failing to obtain a building permit for additional work done on a swimming pool, after expiration of previously-obtained permits. The court found the accusatory instrument there to be insufficient because it failed to allege that the violation had occurred, not because it failed to show the defendant's relationship to the premises.
Defendant next contends that the charge should be dismissed because the evidence upon which it is based was obtained by an “unreasonable search” of defendant's property in violation of the Fourth Amendment to the United States Constitution. The People contend that the constitutional protection he seeks to rely on does not apply here.
The Fourth Amendment assures “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures”. The Fourteenth Amendment makes that provision binding on the states. In essence, those provisions of the Constitution protect citizens from “unreasonable government intrusions into their legitimate expectations of privacy”. United States v. Chadwick, 433 U.S. 1, 7. Accord United States v. Thomas, 757 F.2d 1359, 1366. It has long been the law that evidence gathered in violation of the Amendment may be, and generally will be, excluded in a criminal case. Weeks v. United States, 232 U.S. 383, 398. This is called “the Exclusionary Rule”. As explained below, however, while the Exclusionary Rule may apply in a civil case, it does not necessarily apply in such a case.
Not every gathering of evidence is a “search” within the Amendment or the Exclusionary Rule. “Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment”. Illinois v. Caballes, 543 U.S. 405, 408. Accord United States v. Hayes, 551 F3d 138, 143 (). Thus, a threshold question here is whether the Code Enforcement Officer's conduct in observing the cutting of trees and the Tree Arborist's measuring of the trees is even subject to the Amendment or the Exclusionary Rule.
The Fourth Amendment protections sometimes apply, but do not necessarily apply, in civil cases, and, even when they do, are applied less stringently. Paramount Pictures Corp. v. Doe, 821 FSupp 82, 84 (“in the civil context, the standards of reasonableness [of a search] are less stringent than in the criminal context”). See also Jonas v. City of Atlanta, 647 F.2d 580, 582–83;Honeycutt v. Aetna Ins. Co., 510 F.2d 340, 348. Cas...
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