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Both attorneys acted very professionally throughout these proceedings;

On September 25, 2003, the Associate Village Justice of this Court signed a search warrant directed to “any police officer of the County of Nassau.” A Nassau Criminal Lawyer said that, the search warrant provided: “Proof, by affidavit, having been this day made before me by, Senior Building Inspector, Village of Westbury, Public Works, Village of Westbury and Department of Public Works, Village of Westbury that there is probable and reasonable cause for the issuance of the search warrant, as set forth in the affidavit and Exhibits attached hereto and made a part hereof as if fully set forth herein; you are therefore, commanded to make a search with Senior Building Inspector and his agents, between 09/25/03 and 10/02/03in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises designated and described as 335 Princeton Street, Westbury, New York for the following personal property: illegal kitchen, plumbing, sleeping quarters in basement apartment; evidence of two (2) family dwelling being maintained on the subject premises; evidence of key locked doors to sleeping quarters in the premises; evidence of over occupancy of the premises.

“The seizure of the foregoing evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises. This warrant must be executed within 10 days of the date of signing and a return to court 10 days thereafter. “If you find the same or any part thereof you are hereby directed to return and deliver said evidence to the undersigned Justice of the Village Court without unnecessary delay.”

A Nassau Family Lawyer said that, the Senior Building Inspector submitted what may be described as an exhaustive affidavit in support of the application. This Court wonders why, in view of the thoroughness of this affidavit and the apparent pre-warrant investigation, that a search and search warrant were needed at all unless the Village is simply trying to test the legal waters in this case to determine whether they may have another tool at their disposal, namely search warrants, that they may use to enforce the Village’s zoning and building code laws. The application for and the execution of a search warrant may in themselves deter the proliferation of illegal housing. The execution of a search warrant is an extremely frightening event for those subject to it. The court questions the need for this warrant because there is no legal requirement that a warrant be obtained in order to take photos of the outside of the premises from a public thoroughfare in front of the home.

However, this Court finds that the Village has acted in good faith attempting; for example, to obtain the homeowner’s consent for the search prior to seeking the warrant and no doubt believing that similar actions have been approved and utilized in other villages without challenge.

A Nassau Criminal Lawyer said that, the parties have stipulated to a Mapp and Dunway hearing. The first part of that hearing began on January 13, 2004. The first witness for the People has worked for the Village for 16 years in the Public Works Department. He testified that he had some discussions with our Building Inspector in or about July, 2003. He submitted an affidavit in support of the warrant.

The People called as their first witness, a Supervisor in the Department of Public Works. In July, 2003 the Building Inspector inquired of him as to whether there was an unusual amount of garbage coming out of 335 Princeton Street within the Incorporated Village of Westbury. The witness testified that he noticed a large amount of garbage in front of the home. Westbury has back door delivery, meaning that sanitation workers will ordinarily go to the back door of a home to pick up garbage. The witness went to the back of the home and saw more garbage which he found to be “excessive.” He also observed a basement light on, several bicycles, toys in the backyard and a couple of dog houses. It is undisputed that 335 Princeton Street is in a legal one family zone and the home was zoned for single family occupancy. He signed an affidavit in support of the warrant application. The witness testified that the garbage generated from the home was 3 to 4 times the normal amount at “every pick up.” The cross-examination revealed that he did not make that observation. Hence his sworn statement was incorrect or perhaps in artfully drafted. He testified that he observed the excessive amount of garbage 4 or 5 times. He did not leave a notice of “excessive amounts of garbage” at the home although he said that that was his custom and practice at other residences where he found that condition.
A Nassau Order of Protection Lawyer said that, the witness, testified that he had not seen the 8 adult bicycles on any other dates aside from the one date that he said that he saw them. He also testified that there were four vehicles parked in the driveway and three parked in front of the house. He had no idea who owned these vehicles. He filed an affidavit indicating what he observed. He stated that he also observed many toys in the backyard and that in his opinion as a parent, “The more toys you have, the more children you have.” The Court stated that the witness was testifying as a fact witness and not an expert. No objection was raised by either counsel. He indicated that he would check the amount of garbage coming from various dwellings and he noticed in the month of July that the amount of garbage coming from the home in question was 3 or 4 times the amount for a normal family dwelling. Understandably the witness was unable to determine, based upon his analysis of the garbage, how many people lived at the location or how many there were in the house next door.

The issue in this case is whether the Village Court has the legal authority to issue a search warrant concerning an alleged building or zoning code violation. If so, is there probable cause for the search and is the warrant overly broad.

The Court reaches these legal conclusions very reluctantly and with the utmost deference and respect for my Associate Village Justice and all other Village officials. The fact of the matter is though that this Village is new to the search warrant business and this Court declines to allow these defendants or their tenants to be unknowingly used as part of a legal experiment.

The Constitution of the State of New York specifies the jurisdiction of Village Justice Courts. Art. 6, ยง17(a). The Village Justice Courts play a vital role in the criminal justice system. However, Village Courts of Nassau County do not, in this Court’s opinion, have jurisdiction over felonies or misdemeanors.

This Court cannot feasibly comply with the State Constitution’s requirements for trials by jury in criminal cases. We have no facilities for jurors or jury trials. Moreover, there is no constitutional right to a trial by jury in the case of petty offenses and violations. The charge in this case is an alleged violation of our building code and is not and cannot be an unclassified misdemeanor. The defendants here are not entitled to a jury trial. Nonetheless, it would appear that the search warrant in this case was applied for with the averment having been implicitly made that a crime has been committed. Crimes are misdemeanors and felonies. Ordinarily, an offense carrying with it a potential term of imprisonment of more than fifteen days, but less than one year is deemed to be an unclassified misdemeanor. We have had such offenses within our Code where sentences, for example, may rachet up, in theory, to six months. Yet, merely because the potential sentence is greater than that for a violation, to wit: fifteen days, does not mean that the local law becomes a misdemeanor. It does not. It is very clear that Village Justice Courts in Nassau County have no subject matter jurisdiction over any misdemeanors.

“This Court has reviewed the two court decisions cited by the defendant which deal with the issue of village court criminal jurisdiction. The Appellate Division, Second Department, in the case, held that the defendant’s plea of guilty in village justice court to leaving the scene of an accident did not bar the prosecution in county court of the two felony indictment counts (namely, operating while under the influence of alcohol) that arose out of the same incident, on double jeopardy grounds. The court went on to explain that the elements of the two offenses are different and the same evidence is not required to prove each offense.

“This Court finds that, in the absence of the type of express language found in Article XXIV of the UDCA -Nassau County, the legislative intent was not to abrogate the jurisdiction of the village courts of the five western towns of Suffolk County with regard to Penal Law misdemeanor and driving while intoxicated cases. Accordingly, the defendant’s motion to dismiss the pending accusatory instruments is denied.

Procedurally the process for applying for a search warrant must be very deliberate and strict especially when it comes to entering a residence concerning an investigation of a building code violation in the suburbs where the residence is detached from other homes in the neighborhood. In July, 1990, the American Bar Association released a report entitled:

Guidelines

For the reasons stated herein this Court finds that the evidence obtained was the product of an illegal search and seizure and therefore any evidence seized as a result must be suppressed under the “fruit of the poisonous tree doctrine.” No portion of this decision is meant to override or interfere with search warrants pertaining to subjects other than building code violations where searches have been conducted or authorized by agencies or courts outside of the Incorporated Village of Westbury.

In summary, this Court finds as follows: That it has no jurisdiction over misdemeanors or to issue search warrants in the case of misdemeanors; That the Court has the jurisdiction and authority to issue search warrants of a residence when there is probable cause to believe that a building code violation is being committed providing the three-prong test and has been met and further that the warrant is not overly broad; and the Court here finds that the aforementioned three-prong test has not been met; that the warrant was overly broad and that all of the evidence seized must be suppressed.

Lastly, the Court takes this opportunity to express its gratitude to the very able, experienced and distinguished lawyers in this case, the defense counsel. Both attorneys acted very professionally throughout these proceedings; understood the importance of the case and devoted a great deal of time and expense to it. The Court is very grateful to counsel for helping it to distill the issues in this case and for assisting it in reaching this decision.
The defendants, defense counsel and the prosecutor are directed to appear before this Court on May 13, 2004, at 9:30 a.m., for a conference. This constitutes the decision and order of the Court.

If the evidence used against you in a criminal case, was obtained illegally, you will need the help of a Nassau Criminal Attorney and Nassau Order of Protection Attorney in order to have the said evidence suppressed. Call us at Stephen Bilkis and Associates for free legal advice.

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