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In the instant case, the accusatory instrument accuses the defendant of violating HPC §108-2


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.

Queens County Criminal Attorneys and Queens County Arrest Attorneys at Stephen Bilkis & Associates exert earnest efforts to exhaust all means to protect and defend your rights. If the issues mentioned in the case at bar sound familiar to you and you know someone faced with the same dilemma, please feel free to call our toll free number or visit our place of business. We are willing to extend a helping hand.

Defendant contends that the accusatory is defective because it fails to allege that defendant’s property is not a prior, non-conforming use. 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 criminal charge rather than an exception that must be alleged specifically in the accusatory instrument. An exception has been defined as language which absolutely excludes certain maters from its scope as held in People v. First Meridian Planning Corp. A proviso is a condition or stipulation that qualifies or restrains the general scope of a statute, or prevents misinterpretation akin to People v. Durkee.

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 court holds that HPC §108-44 is a proviso, not an exception that must be affirmatively alleged in the negative by the People in the accusatory instrument.

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.

Accordingly, the defendant’s motion to dismiss the accusatory instrument as jurisdictionally defective is denied.

It is undisputed that the defendant has never filed an appeal with the Hyde Park Zoning Board of Appeals concerning the Order to Remedy, dated 12 July 2005, never filed an appeal from a Notice of Complaint, dated 27 October 2003, which was mailed to defendant’s father and never filed an appeal from a prior Order to Remedy, dated 29 November 2004, mailed to defendant regarding unregistered motor vehicles and site plan approval needed on the premises.

Thus, the Town of Hyde Park has made three efforts to have the property remediated. No response from the defendant has been forthcoming. No appeal has been filed to the ZBA.

Defendant contends that 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 as ruled in Crane v. Kentucky and Chambers v. Mississippi.

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 example, a defendant must provide timely notice of the intention to present psychiatric evidence, or otherwise risk being precluded from introducing such evidence at trial pursuant to CPL §250.10.

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 in accordance with CPL §250.20.

In this case, the administrative remedy to follow has been otherwise specifically prescribed in Town Law, §267-a and §267-b. When this 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.

It has long been held in the case of People v Namro that the propriety or correctness of the underlying administrative order generally may not be collaterally contested in a criminal prosecution for its disobedience.

The defendant principally relies on People v. Perkins, People v. Franco. However, these cases do not have 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.

The court has also considered 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 based on Town Law §267-a (6). There was no burglary and there were no weapons found.

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 §267-a (5)(b) and HPC §108-113. Had the defendant appealed the Order to Remedy to the ZBA, the ZBA’s determination would have been binding in any subsequent criminal prosecution akin to the case of People v. Waring. The defendant chose not to appeal the Order to Remedy, and cannot now attack its validity in a criminal proceeding.

The People’s motion in limine is granted. Defendant is precluded from the introduction of evidence at trial which seeks to establish his use of the property at issue constitutes a pre-existing, non-conforming use.

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