People v. Wayman
| Decision Date | 16 July 1975 |
| Citation | 371 N.Y.S.2d 791,82 Misc.2d 959 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Ellsworth WAYMAN and Evelyn Simpson, Defendants. |
| Court | New York Justice Court |
Bernard Kessler, Hyde Park, for defendants.
Cavalari & Larocca, Vails Gate, for relator.
Defendant moves this court for an order directing service and filing of a Bill of Particulars, trial by jury, discovery and inspection, and transfer of this cause to the Supreme Court, Orange County or in the alternative to proceed by civil action.
The Defendants are charged with violation on April 25, 1975 of Section 48--7A(1) of the zoning ordinance of the Town of New Windsor, which provides in part as follows:
In a One Family Residence RB District no building or premises shall be used, and no building or part of a building shall be erected, which is arranged, intended or designed to be used, in whole or in part, for any purpose except the following: (A) Permitted Uses: 1. Any use permitted except . . . mobile home courts . . ..
The pertinent portions of the two informations read as follows:
'I, Howard R. Collett, Zoning Inspector of the Town of New Windsor, being duly sworn, deposes and gives information as follows:
'That the defendants, on the 25th day of April, 1975, in the Town of New Windsor, County of Orange, New York, at about 9:00 o'clock A.M., did commit the violation of locating two Mobile Homes in violation of Sec. 48--7A(1) Zoning Ordinance of the Town of New Windsor of the State of New York, in that they did; wrongfully, unlawfully, and knowingly, at the aforesaid time and place locate five (5) mobile homes in a Trailer Court owned by her, located at 368 Union Avenue, a one family residential district (RB); Section 48--7A(1) Prohibits any Mobile Home in a residential district (RB).'
The Defendants were issued an order to remedy this Violation of the Zoning Ordinance on April 25, 1975 and to be complied with by May 5, 1975. The maximum number of Mobile Homes which the Defendants may keep in said District as a Non-Conforming Use is three (3) and she continues to maintain five (5).
For a Bill of Particulars, Defendants apply for Answers to the following items, setting forth:
(a) The number of mobile homes which are alleged were located on the defendants' premises in the years 1966, 1967, 1968, 1969 and 1970;
(b) The size of the said mobile homes that were so located on the premises as of the years above set forth and their location on the lot.
(c) Whether it is claimed any permits of any kind were required for the location of the said mobile homes on the defendants' premises in the years 1966, 1967, 1968, 1969 and 1970 and, if so, dates of such permits and issuing agencies and the purpose of such permits.
(d) In what respect it is alleged that the defendants may keep three (3) mobile homes on the premises as a non-conforming use and the locations thereof.
(e) The date that HOWARD R. COLLETT allegedly took his oath of office and whether the said oath was filed with the Town Clerk in the Orange County Clerk's Office.
(f) In what respect and manner it is alleged that the defendants cannot continue to maintain five (5) mobile homes as a non-conforming use on their premises.
(g) The date or dates when it is alleged that the defendants committed the alleged violation.
According to 2B Consolidated Laws Service, Criminal Procedure Law Section 200.90 Commission Staff Comment (pp. 3--47):
Applying this guideline, defendant's application for Items 10(a), (b), (c) and (e) are denied. Application for Items 10(d), (f) and (g) are granted.
Defendants also move this court for an order directing trial by jury. Defendants are charged with violation Section 48--7A(1) of the Zoning Ordinance of the Town of New Windsor set out above. Section 48--29 of the Code of the Town of New Windsor sets forth a maximum penalty of ten days imprisonment for the violation of Section 48--7A(1).
Therefore the issue is whether defendants are entitled to a trial by jury where defendants may be sentenced to a maximum term of imprisonment of ten days as provided in a law or ordinance (Code of the Town of New Windsor) outside the penal law of the State of New York.
The zoning inspector's and the defendants' arguments concerning right to a jury trial revolve around interpretation of Town Law Section 135 and 268. Defendants cite People v. De Cinto, 24 Misc.2d 21, 207 N.Y.S.2d 646, in support of their interpretation of the above Town Law provisions. Defendants advance the theory that violations of a Zoning Ordinance is a misdemeanor pursuant to the Town Law and People v. De Cinto, thereby requiring trial by jury. The zoning inspector advanced the theory that violation of a zoning ordinance is a violation not a misdemeanor according to the Town Law; therefore, defendants are not entitled to a trial by jury. Apparently the parties agree that defendants' right to a jury trial depends on whether the zoning violation here is classified as a misdemeanor or a violation. (See also People v. Star Supermarkets, 67 Misc.2d 483, 484, 324 N.Y.S.2d 514, 516.)
Whether the Town Law defines violation of a zoning ordinance as a violation or a misdemeanor is not material in our opinion. In this respect this Court respectfully differs with the Court of Special Sessions in its opinion in People v. De Cinto, 24 Misc.2d 21, 207 N.Y.S.2d 646.
According to Penal Law Section 5.05, Subd. (2) the provisions of the Penal Law govern the 'construction of and punishment for any offense defined outside of this chapter . . ..' This Court finds that the classification of the zoning violation here and the ultimate determination of whether defendants are entitled to trial by jury must be made through application of the Penal Law. For the above purposes this Court finds that the specific provisions of Section 5.05, Subd. (2) supersede the general provisions of Penal Law Section 5.00. (Cf. People v. Bonnerwith...
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