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The defendant was charged with eleven counts of having multiple unregistered, unlicensed motor vehicles on his property in the Town of Hyde Park without a site plan approval to operate a junkyard in violation of Hyde Park Code.

On or about 12 July 2005, defendant was served with an Order to Remedy Violation issued by the Deputy Zoning Administrator. The said order cited defendant for business related activities occurring at his premises by the storage of unregistered and unlicensed motor vehicles without prior site plan approval, and directed defendant to comply with the law and to remedy the condition on or before 26 July 2005. Subsequently, the Deputy Zoning Administrator issued an appearance ticket, dated 27 July 2005, made returnable on 8 September 2005.

On 8 September 2005, a twelve count Information was filed against defendant. Defendant appeared by counsel who orally moved to dismiss the Information on facial sufficiency grounds. The motion was denied, without prejudice to renew in writing. The criminal case was adjourned to 22 September 2005 for trial.

On 22 September 2005, the defendant personally appeared and was arraigned on a Superseding Information, filed that date, alleging eleven counts, one original count being eliminated. He declined to enter a plea on the grounds that the accusatory instrument was not an Information. The People requested the court summarily determine whether the accusatory instrument was an Information but was denied.

On 6 October 2005, the defendant filed a Notice of Defense that he intended to raise at trial the ordinary defense of justification.

On 11 October 2005, the People moved in limine to preclude the introduction of evidence at trial by the defendant seeking to establish that the defendant’s use of the property was a pre-existing, non-conforming use. According to the People, the defendant had failed to timely appeal the issue to the Town of Hyde Park Zoning Board of Appeals (ZBA); the ZBA is the proper authority vested with jurisdiction to review Orders issued by the Zoning Administrator, including the Order to Remedy, not a Justice Court which lacks authority to review the propriety of such zoning orders, decisions or interpretations of the Zoning Administrator.

On 17 October 2005, the defendant answered the motion in limine and cross-moved to dismiss the complaint pursuant to CPL §170.30(1)(a) on facial sufficiency grounds.

On 4 November 2005, the People filed a Reply Affirmation in support of the motion in limine and an Affirmation in Opposition to defendant’s cross-motion.

On 10 November 2005, oral arguments on the motions and cross-motion were held.

On the Motion to Dismiss on the ground of Facial Insufficiency:

According to the defendant, the accusatory instrument failed to allege that his property is not a prior non-conforming use; the pre-existing, non-conforming use provision of HPC §108-44 is an exception to the crime that is expressly contained within the statute, so that it must be alleged in the complaint; and, because the complaint did not expressly state factual allegations negating the exception, the complaint is jurisdictionally defective.

Under the law and rules, a non-conforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of such ordinance. HPC §, Article XV, §108-44 entitled “Continuing existing uses” states that: except as otherwise provided in the Article, the lawfully permitted use of land or buildings existing at the time of the adoption of the chapter may be continued, although such use does not conform to the standards specified by the chapter for the zone in which such land or building is located; said uses are deemed nonconforming uses.

On another note, for a misdemeanor information to be facially sufficient, it must conform to the requirements of CPL §100.40 and §100.15. The factual portion must allege facts of an evidentiary character supporting or tending to support the charges. Further, the allegations of the factual part, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the robbery offense charged. Lastly, non hearsay allegations must establish, if true, every element of the offense charged and the defendant’s commission thereof. The last requirement is known as the prima facie case requirement, meaning, a facially sufficient information must contain enough factual allegations to establish a prima facie case. While an information must state the crime with which the defendant is charged and the particular facts constituting that crime, the prima facie requirement is not the same as the burden of proof required at trial. So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. Indeed, the law does not require that the information contain the most precise words or phrases most clearly expressing the charge, but only that the crime and factual behavior therefor be sufficiently alleged. However, the complete omission of an element from the face of the accusatory instrument is a jurisdictional defect that requires dismissal.

As a rule, if a defining statute contains an exception, the absence of the existence of the exception is a material element that must be alleged in the accusatory instrument. As the Court of Appeals recently explained in the case of People v. Santana in 2006, essential allegations are generally determined by the statute defining the crime. Thus, if the defining statute contains an exception, the accusatory instrument must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense.

Here, the accusatory instrument accuses the defendant of violating HPC §108-2, §108-23, §108-32, §108-33 and §108-34 as they relate to junkyards. In eleven counts, defendant is accused of illegally having unlicensed, unregistered vehicles on his property on eleven separate dates between 24 April 2003 and 13 August 2005. Insurance fraud was not involved.

According to the defendant, the accusatory instrument is defective because it failed to allege that defendant’s property is not a prior, non-conforming use; and he cited the case of People v. Rodriguez, decided in 1985 and 1986. Under that case, Penal Law §265.02, which defined criminal possession of a weapon in the third degree, and which includes an exception for certain loaded firearms that a person possesses in his or her home or business, was raised.

Where an exception to a defining penal law statute is found completely or partially outside the statute, such exception is deemed to be a proviso that an accused may raise in defense of the charge rather than an exception that must be alleged specifically in the accusatory instrument. For example, an accusatory instrument charging a person with criminal contempt in the second degree under Penal Law §215.50 (3) is not defective for failure to state that the allegedly violated court order was not issued in the context of a labor dispute. While the labor dispute exception is expressly mentioned in Penal Law §215.50 (3), that provision specifically refers to a definition of labor disputes found outside of Penal Law §215.50. Accordingly, the labor dispute exception is a proviso that the accused may raise as a defense to the charge rather than an exception that must alleged specifically in the accusatory instrument. On this note, an exception has been defined as language which absolutely excludes certain maters from its scope, whereas, a proviso is a condition or stipulation that qualifies or restrains the general scope of a statute, or prevents misinterpretation.

Here, the non-conforming use provision of HPC §108-44 is not part of the statutes relating to junkyards contained in HPC §108-32, 32 and 34. It may not be considered a specific exception to the junkyard provisions of these sections, but rather a separate statute articulating a proviso generally applicable to the Hyde Park zoning statutes as to lawful, pre-existing, non-conforming uses. The HPC §108-44 is a proviso and not an exception that must be affirmatively alleged in the negative by the People in the accusatory instrument. Thus, as a matter of common sense and reasonable pleading and in line with giving the instant accusatory instrument a fair and not overly restrictive or technical reading, the accusatory instrument was found by the court to be facially sufficient. It contains seven pages of factual allegations about sales tax setting forth a clear and sufficient expression of the factual basis for the offenses alleged.

In the case of People v. Campbell by the Second Department in 2005, the issue is whether the exemption on its face exhausts the limitations on enforcement, and if not, whether the result fairly apportions the burden of proof and comports with rational pleading requirements.

In the case at bar, requiring the People to allege and prove that defendant’s property is not being properly used as an alleged junkyard, because such use was not a lawful, pre-existing non-conforming use would unfairly apportion the burden of proof. Quite simply, the People would be required to affirmatively allege and prove beyond a reasonable doubt the negative facts that prior to the enactment of the Hyde Park zoning ordinance, the property had never been lawfully used as a junkyard. Such a result would not fairly apportion the burden of proof and comport with rational pleading requirements.

Consequently, the defendant’s motion to dismiss the accusatory instrument as jurisdictionally defective was denied.

On the Motion In Limine to Preclude the Defense of Pre-Existing, Non-Conforming Use:

Indisputably, the defendant has never filed an appeal with the Hyde Park Zoning Board of Appeals concerning the Order to Remedy dated 12 July 2005; the accusatory instrument alleged that defendant never filed an appeal from the Notice of Complaint dated 27 October 2003 which was mailed to the address of defendant’s father who died on 30 January 2001, prior to the mailing; defendant never filed an appeal from a prior Order to Remedy dated 29 November 2004 which was mailed to defendant regarding the unregistered motor vehicles and site plan approval needed on the premises. Clearly, the Town of Hyde Park has made three efforts to have the property remediated, but to no avail, no response from the defendant has been forthcoming, and no appeal has been filed to the ZBA.

As provided for under Town Law §267-a (5)(b), and by reference HPC §108-113, an appeal must be taken within sixty days after the filing of any order, requirement, decision, interpretation, or determination of the administrative official to the Zoning Board of Appeals; and an appeal stays all proceedings in furtherance of the action appealed from until the ZBA renders their decision. This would include the instant criminal proceeding. The ZBA is vested with the authority to make zoning interpretations, decisions and determinations arising out of appeals from orders and opinions filed by the administrative official for the Town. These statutes seemingly anticipate and effectively prevent the distraction that would otherwise occur of a trial within a trial, by giving the authority to the ZBA to review the Zoning Administrator’s Orders while staying proceedings in Justice Court.

According to the defendant, Penal Law §25.00 unconditionally permits defendant to raise a defense at trial.

Indeed, it is a fundamental constitutional right of the accused to introduce evidence and present a defense. However, it is well established that the right to present a defense or certain evidence may be curtailed or excluded on notice, procedural or evidentiary grounds. For instance, a defendant must provide timely notice of the intention to present psychiatric evidence, or otherwise risk being precluded from introducing such evidence at trial. Similarly, a defendant must provide timely notice of the intention to present an alibi as a trial defense, or otherwise risk being precluded from introducing such evidence at trial. These limitations have been upheld by the United States Supreme Court and New York Court of Appeals. So, too, a defendant may not introduce evidence of the violent propensities of the alleged victim merely to show that the victim was the likely aggressor. Nor may a defendant generally present evidence of the victim’s past sexual conduct in sex offense cases unless such evidence proves or tends to prove certain specific instances of conduct, or rebuts certain facts or evidence, or in a non sex-offense cases unless the court makes an affirmative finding that the evidence would be relevant and admissible in the interests of justice after an offer of proof by the proponent of the evidence. Other rules of evidence limit a defendant’s right to introduce evidence or present a defense. It is sufficient to state that the above said instances underscore that the fundamental right to introduce evidence or present a defense is not unconditional and unlimited. Further, a Justice Court is of limited jurisdiction whose powers are prescribed by the New York State Constitution. With respect to criminal jurisdiction, the Uniform Justice Court Act (UJCA) provides that insofar as criminal matters are concerned, the Justice Courts must resolve and enforce other applicable laws while they preside over criminal matters. Under UJCA §2001(2), unless otherwise specifically prescribed, the practice and procedure in the court shall be governed by the Criminal Procedure Law.

Here, the administrative remedy to follow has been otherwise specifically prescribed in Town Law, §267-a and §267-b. When the court presides over zoning violations, it must enforce the statutes that address the zoning appeals process, and must not blindly apply the Criminal Procedure Law alone. Generally, the propriety or correctness of the administrative order may not be collaterally contested in a criminal prosecution for its disobedience.

Notably, defendant principally relied on the case of People v. Perkins, decided in 1940, where the defendant’s conviction was reversed and the information was dismissed when the court found no evidence to justify the finding that the defendant was doing more than continuing the permitted non-conforming use; the case of People v. Franco, decided in 2004, where defendant was convicted after the court rejected the defense of prior, non-conforming use on the merits; in the case of People v. Burns, decided in 1982, where the defense of prior non-conforming use failed on the merits and the defendants were convicted. However, in none of these cases was the issue of exhaustion of the right to appeal to the ZBA raised as a ground for objecting to the assertion of the affirmative defense of non-conformity. That is, the issue of the appropriate forum to decide the issue of non-conformity was not a contested issue by the parties. These cases may not be viewed as dispositive when, as here, a threshold objection is asserted by a party.

Moreover, a consideration must also be given to the fact that the People commenced the instant criminal prosecution before the expiration of the sixty day appeal period. While it arguably may be a better practice not to commence a criminal prosecution until after the appeals period has expired, there is no bar in doing so. In fact, the relevant statutes contemplate such criminal prosecution being commenced prior to an appeal being taken by a property owner in that any criminal prosecution is immediately stayed by the filing of an appeal to the ZBA.

Clearly, the defendant had both the right and the opportunity to review the Order to Remedy by appeal to the Zoning Board of Appeals as provided in Town Law. Had the defendant appealed the Order to Remedy to the ZBA, the ZBA’s determination would have been binding in any subsequent criminal prosecution. Regardless, the fact exists that defendant chose not to appeal the Order to Remedy, and, thus, cannot now attack its validity in a criminal proceeding.

Consequently, the People’s motion in limine was granted; defendant was precluded from the introduction of evidence at trial which sought to establish that his use of the property at issue constitutes a pre-existing, non-conforming use.

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