People v. Noga

• Citation: 50 Misc.3d 41,22 N.Y.S.3d 285
• Parties: The PEOPLE of the State of New York, Respondent, v. Russell NOGA, Appellant.
• Decision Date: 18 September 2015
• Court: New York Supreme Court — Appellate Term

50 Misc.3d 41
22 N.Y.S.3d 285

The PEOPLE of the State of New York, Respondent,
v.
Russell NOGA, Appellant.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Sept. 18, 2015.

22 N.Y.S.3d 286

Craig T. Bumgarner, P.C., Carmel (Ellen A. Faulkner of counsel), for appellant.

Timothy J. Curtiss, P.C., Carmel (Timothy J. Curtiss of counsel), for respondent.

PRESENT: MARANO, P.J., IANNACCI and TOLBERT, JJ.

Appeal from a judgment of the Justice Court of the Town of Kent, Putnam County (Kevin L. Douchkoff, J.), entered July 17, 2013. The judgment convicted defendant, after a nonjury trial, of parking a prohibited commercial vehicle in a residential district. The appeal from the judgment of conviction brings up for review an order of the same court dated December 20, 2012 which denied defendant's motion to dismiss the accusatory instrument.

50 Misc.3d 42

ORDERED that the judgment of conviction is reversed, on the law, the order dated December 20, 2012 is vacated, defendant's motion to dismiss the accusatory instrument is granted, and the fine, if paid, is remitted.

On June 14, 2012, the People charged defendant, in an information, with violating section 77–38(D)(2) of the Code of the Town of Kent (Code) in that, on that date, he "park[ed] a prohibited commercial vehicle outdoors" at his residence, namely, a 2010 Ford dump truck registered to defendant at his residential property. Section 77–38, which contains a subdivision bearing the title "Prohibited Parking," states, in pertinent part:

"(D)(2) Not more than one commercial vehicle, excluding construction equipment, may be parked on any lot in a residential district, provided that no such vehicle shall have more than four wheels ..." (emphasis added).

Defendant moved to dismiss the accusatory instrument, arguing, among other things, that the ordinance's expression "excluding construction equipment" is unconstitutionally vague on its face. By order dated December 20, 2012, the Justice Court denied the motion. After a nonjury trial, the court convicted defendant of the charge.

50 Misc.3d 43

On appeal, defendant argues that Code § 77–38(D)(2) is unconstitutionally vague on its face in that it fails to provide adequate notice as to what constitutes a violation. We agree.

A vagueness challenge to a zoning ordinance requires the application of a two-pronged test, to determine first, whether the ordinance "provide[s] sufficient notice of what conduct is...