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Defendants Claim Faulty Search Warrant

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 New York Criminal Lawyer said 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 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 10/02/03 in 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. “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 Bronx Criminal 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 Bronx Criminal Lawyer said that, the subject property, 335 Princeton Street, is a two story house within the Incorporated Village of Westbury, New York. As shown on the records of the Department of Buildings of the Village of Westbury it is located on a quiet residential block consisting of one (1) family homes neatly maintained on a tree lined block.

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?

In colloquy with the Court, counsel noted that there was no record of the proceedings before Associate Justice. Therefore, the Court ruled that the testimony during the hearings in this case would be limited to the “four corners” of the search warrant application and the affidavits contained therein. As to any other matters that may have been before Associate Justice, but not memorialized in the form of a transcript or in some other way, those matters were disallowed and witnesses were not permitted to testify about them. C.P.L. § 690.40(1) provides that the Court: “may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court.” As stated hereinafter, the better procedure is for the neutral court to conduct an examination under oath and that a stenographic record is made of the proceedings. Evidence seized may be suppressed if the affidavit on which the warrant is based did not indicate the sources of the informant’s belief whether on personal knowledge or otherwise. A trial judge may look beyond a police investigator’s affidavit to the sworn in camera testimony of a confidential informant to determine if the search warrant was issued upon probable cause.

There was some reference to complaints being made by adjoining property owners or other neighbors and the People decided to turn over all of their records in connection with the property and essentially provided the defense with open file discovery. The People also provided the defense with information about confidential informants or adjoining property owners who had complained about the property in question.

In the absence of a life-threatening emergency or conditions presenting immediate and irreparable harm, an access order under the Administrative Code of the City of New York to inspect an owner-occupied one-family home to determine whether it is being used as a three-family dwelling, in violation of the code, may issue only on notice to the owner, and in ruling on the application for the access order, the court must weigh the constitutional rights of the owner against the prejudice to the Department of Housing Preservation and Development in the enforcement of its appointed duties.

The Building Department also protects the community from unscrupulous absentee landlords who seek to exploit the poor and other property owners for their own personal gain and profit. The Village has a long history of promoting the establishment of legal, habitable space while at the same time preserving the residential character of the community. In order to do so, zoning laws have been strictly enforced and illegal, multiple dwellings are not tolerated. But, at the same time, the rights of homeowners are respected.

People must be safe in their homes and protected from illegal searches and seizures. In, the Supreme Court of the United States held: “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Thus, the exclusionary rule is operative in this court in accordance with the Fourth and Fourteenth Amendments of the United States Constitution. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”

The Code Enforcement Officer is authorized to make application to the Village Justice Court of the Village of Westbury or the District Court of Nassau County for the issuance of a search warrant to be executed by a police officer, in order to conduct an inspection of any premises covered by this article where the owner or occupant refuses or fails, after due notice by certified mail, to allow an inspection of the rental dwelling unit or premises, and where there is reasonable cause to believe that a violation of this chapter or a violation of the Multiple Residence Law, the New York State Uniform Fire Prevention and Building Code, the Nassau County Fire Prevention Ordinance or Chapter 83, Building Rehabilitation, Chapter 112, Electrical Standards, Chapter 124, Fire Prevention, Chapter 173, Oil Burners, Chapter 184, Plumbing and Drainage, or Chapter 187, Property Maintenance, of this village has occurred. The application for a search warrant shall, in all respects, comply with applicable laws of the State of New York. Although a warrant to seize films was issued by a Supreme Court Justice, the Justice Court was authorized to hear a motion to suppress the films and to evaluate the probable cause supporting the warrant.

Since a Justice Court may not issue a search warrant unless it has geographic, but not necessarily trial jurisdiction, the affidavits which form the basis for issuance of the search warrant must allege that an offense was committed within its jurisdiction. The Uniform District Court Act clearly removed from Village Courts of Nassau County any jurisdiction that they may have had over crimes and transferred that authority to the District Court. Uniform District Court Act, effective 9/1/63 Repealing the Nassau County District Court Act, L.1936, C.879 & L.1939, C.274, as Amended 11/1/89 §2402 U.D.C.A. Justices of the Peace abolished; powers and jurisdiction of police justices transferred.

“All the powers, duties and jurisdiction of the justices of the peace in the several towns of the county are hereby transferred to the district court of the county and the judges thereof, and the office of the justice of the peace in the several towns of the county is abolished. All the powers, duties and jurisdiction of police justices of villages in the county, except as hereinafter provided, are hereby also transferred to the district court of the county and the judges thereof. The police justices of villages in the county shall have jurisdiction of violations of the ordinances and other regulations of the village and the violations of the vehicle and traffic law committed within the limits of the village, except in cases in which the charge is operating a motor vehicle or motor cycle while in an intoxicated condition.”

The Village Law of the State of New York as amended in 1985 provides: § 20-2006. Violation of Ordinances 1-a. A violation of a zoning ordinance adopted prior to September first, nineteen hundred seventy-four is hereby declared to be an offense, punishable by a fine not exceeding three hundred fifty dollars or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine not less than three hundred fifty dollars nor more than seven hundred dollars or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than seven hundred dollars nor more than one thousand dollars or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of such zoning ordinance shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week’s continued violation shall constitute a separate additional violation.

This peculiar enactment provided that a violation of a zoning code is declared to be an offense but deemed to be misdemeanors for jurisdictional purposes. Thus, it has little application here since this Court does not have jurisdiction over misdemeanors. But, in this County, it does allow the District Court to assume jurisdiction over a zoning or building matter if it is deemed to be a misdemeanor. Essentially, this permits our District Court to have jurisdiction over building code violation cases which occur in the unincorporated areas of our Towns. The Town attorneys in the three Towns in Nassau County may then prosecute these cases in the District Court.

Arguably, in this Village our Zoning Code, prior to recent amendments, provided for jail sentences of up to six months for some zoning violations. Some have argued that such potential penalties render the charges an unclassified misdemeanor due to the length of the possible incarceration. This Court agrees and provides that jail penalties of up to six months for offenders, if they exist, are illegal and unconstitutional even if they are not specifically challenged here. Violations are punishable by jail sentences of no more than fifteen days. They do not require an allocution. Misdemeanors on the other hand, require an advisement and rights. For example, defendants are entitled to know that the entry of a guilty plea means that they have been convicted of a crime. They are entitled to know what a crime is and the penalties in connection therewith. The Village and State do not have any reporting mechanism for informing the New York State Criminal Justice Service Agency of convictions for misdemeanors that might otherwise arise out of our Court. Since most Village Justices do not impose jail sentences, most are not aware that sections of their village code may contain provisions where violations of them are misdemeanors.

We also do not have any facilities for the preparation of presentence reports by the Nassau County Probation Department. We do not adjourn cases for sentencing in order to receive reports. We do not advise defendants that they have a right to remain silent; that they have a right to a jury trial; that they may call and cross-examine witnesses; that a plea of guilty is the same as being convicted after a trial. But for this clarification, defendants may be unwittingly pleading to misdemeanors without ever knowing that that is the case.

The right of privacy and to be free from illegal searches and seizures is perhaps the single most important part of the Constitution and a building block for the freedoms and democracy upon which this country is based. The Village argues that it has limited powers at its disposal to enforce our zoning laws. So be it. If the Village feels it must have more power to control the spread of illegal multiple dwellings, it must go to the Legislature for that and not this Court. However, righteous or noble the purpose, this Court cannot condone a constitutional breach. When a trespass has occurred, even a later discovery of a violation of the law, cannot justify or forgive the illegal entry.

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 ratchet 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. In 1994 my distinguished colleague from the Village of Huntington Bay, Suffolk County poignantly analyzed the scope of jurisdiction for the Village Courts in Nassau and Suffolk Counties.

“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, 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.

Accordingly, the court held that defendant’s motion to dismiss the pending accusatory instruments is denied.

People must be safe in their homes and protected from illegal searches and seizures. If there is a violation of your rights, whether it is regarding drug crimes, sex crimes or theft, seek the assistance of a Bronx Criminal Attorney and Bronx DWI Defense Attorney at Stephen Bilkis and Associates.

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