This is a proceeding wherein the defendant, J, is charged with eleven counts of having multiple unregistered, unlicensed motor vehicles on his property at 2401-2403 Route 9G in the Town of Hyde Park without site plan approval to operate a junkyard in violation of Hyde Park Code (HPC) §108-2, §108-23, §108-32, §108-33 and §108-39.
The criminal defendant was served with an Order to Remedy Violation on or about 12 July 2005 issued by A, the Deputy Zoning Administrator. The Order cited defendant for business related activities occurring at the above 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, A issued an appearance ticket, dated 27 July 2005, made returnable on 8 September 2005, on which date a twelve count Information was filed on his complaint. The arrest was made.
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 case was adjourned to September 22nd for trial.
On September 22nd, 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 pursuant to CPL §170.65 (1)]. The People requested the court summarily determine whether the accusatory instrument was an information which request was denied.
On October 6th, the defendant filed a Notice of Defense that he intended to raise at trial the ordinary defense of justification in accordance with Penal Law, §25.00(1), §35.05(1)] premised upon HPC, Chapter 108, Article XV “Nonconforming Uses, Buildings and Lots”.
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, saying that the defendant had failed to timely appeal this issue to the Town of Hyde Park Zoning Board of Appeals. The People contended 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. 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 November 4th, the People filed a Reply Affirmation in support of the motion in limine and an Affirmation in Opposition to defendant’s cross-motion. Oral argument on the motions and cross-motion was held on November 10th.
With regard to facial insufficiency, defendant argues that the accusatory instrument fails to allege that his property is not a prior non-conforming use and that 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. Because the complaint does not expressly state factual allegations negating the exception, defendant argues that the complaint is jurisdictionally defective.
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:
Except as otherwise provided in this Article, the lawfully permitted use of land or buildings existing at the time of the adoption of this chapter may be continued, although such use does not conform to the standards specified by this chapter for the zone in which such land or building is located. Said uses shall be deemed nonconforming uses.
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 pursuant to CPL 100.15 (3). Further, the allegations of the factual part, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged. Lastly, non hearsay allegations must establish, if true, every element of the offense charged and the defendant’s commission thereof as ruled in People v. Allen. The last requirement is known as the prima facie case requirement as held in People v. Alejandro meaning that 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 as held in People v. Hall, the prima facie requirement is not the same as the burden of proof required at trial as in People v. Henderson. 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 as held in People v. Casey. Robbery was not involved.
In the instant case, 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.
To Be Continued…..
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