Opinion
0170-2009.
Decided on July 21, 2011.
Hon. James R. Farrell, Sullivan County District Attorney, LHC Sullivan County Courthouse, Monticello, New York.
By: J. Michael Thomas, Esq., of counsel, Attorney for the People/Appellee, Levinson, Reineke Ornstein, P.C., Central Valley, NY.
By: Justin Kimple, Esq., of counsel, Attorney for the Defendant/Appellant.
This matter comes on by timely Notice of Appeal and appellant brief appealing the defendant's non-jury conviction by the Mamakating Town Court and each part thereof.
The People submit a brief in opposition.
Defendant submits a reply brief.
In or about November, 2007 appellant James Mason ceased living with his then wife Karie Boniface and moved out of the marital residence pursuant to a Supreme Court Order of Protection in regard to a divorce action.
On or about April 8, 2008, the Supreme Court issued an Order of Removal Upon Consent replacing the Order of Protection. Said Order of Removal was stipulated to by the parties and their respective attorney's, was draw by one of the parties attorneys and granted "exclusive use and occupancy of the formal martial residence located at 933 Roosa Gap Road, Bloomingburg, New York, 12721."
On or about June 15, 2008, the caretaker of the former marital residence, Mr. Stevenson, whose trailer/residence is located on Boniface property across a public highway from the Boniface house, heard a motorcycle coming out of the driveway of Boniface residence.
Stevenson exited his trailer and witnessed the appellant and a companion exiting the end of the driveway, drive across the public highway, enter onto the property across the road where the caretaker's trailer and a barn are located and enter the barn. Stevenson recognized the appellant and knew that he was not permitted on the premises.
Shortly thereafter, Stevenson called the state police, but appellant and his companion left before the troopers arrived.
Appellant was charged with criminal contempt in the second degree, Penal Law § 215.50, for disobeying a court order; the Order of Removal Upon Consent.
In a bench trial held in the Town Court, appellant was found guilty of criminal contempt in the second degree as charged for violating the court ordered Order of Removal Upon Consent.
The issue in this appeal is whether the People proved beyond a reasonable doubt that the defendant violated the terms of the Order of Removal Upon Consent, which gave Karie Boniface the "exclusive use and occupancy of the former martial residence", by encroaching upon the driveway adjacent to the residence and upon the property and barn across the public highway. Or, to but the premise another way; did the People prove beyond a reasonable doubt that the real property which the defendant encroached is part of the "marital residence".
This Court holds that the People failed to prove beyond a reasonable doubt that the property the defendant encroached upon (the driveway on one side of the public highway and the real property and barn on the other side of the public highway) are part of the "marital residence" and, therefore, did not satisfy their burden that the defendant committed the crime of criminal contempt in the second degree pursuant to Penal Law § 215.50.
There is no evidence to suggest that the People proved that the driveway and the barn in question were part of the same plot of land that make up the marital residence. The People cite Basos v. Basos , 243 AD2d 932 (3rd Dept. 1997), where the Third Department stated that "the parties' nonliquid assets, the marital residence (which includes 24 acres of land), its contents and two motor vehicles . . ." in order to illustrate that the dwelling and the land the dwelling sat upon both comprised of the same martial residence.
In Church v Church , 169 AD2d 851 (3rd Dept. 1991), the Court discussed the equitable distribution of martial property. Within that discussion, the marital property in question included "the parties' marital residence . . ., an adjoining 7.8-acre parcel . . . and a Ford diesel farm tractor" ( Id. at 851). In this description, the Court is pointing out that the "marital residence" consists of residential house and the real property upon which it sits is separate from the adjoining 7.8-acre parcel.
Similarly, in Spenello v Spenello , 274 AD2d 822 (3rd Dept. 2000), the defendant "paid the taxes, utilities, insurance, and general expenses of the marital residence." It is illogical to hold that the defendant paid taxes only on the actual residential house, since taxes are usually paid on the land (and any buildings thereon).
Allison C. v Anthony C. , NY Misc. LEXIS 3397 (N.Y.L.J. 2005) illustrates the fact that a mortgage which encumbers the martial residence also encumbers the real property upon which it sits as shown by the legal metes and bounds description attached to the mortgage. Therefore, it is reasonable to conclude that a "marital residence" includes not only the actual residential house but the land it sits upon within the same section, lot and block number assigned to the parcel by a municipality.
In the instant case. the People failed to prove that the driveway and the property and barn across the public highway were part of the martial property which the residence sat upon. It is an assumption that the driveway and the property and barn across the public highway were part of the same property as the "marital residence". The driveway and the property and barn across the public highway could just as easily be on adjoining parcels with a different section, lot and block numbers. See, Church , supra and Spenello , supra. It is not automatically the case that because an owner owns property on both sides of the road that all of it is considered to be in the same section, lot and block number.
The People failed to proof in any way, much less beyond a reasonable doubt, that the defendant's encroachment upon the driveway and the real property and barn was an encroachment upon the same property upon which the "marital residence" sits.
It would have been easy to prove this point by asking either Karie Boniface or the caretaker, Mr. Stevenson, whether there was one parcel or different parcels involved herein as both testified at the trial or to put a tax bill into evidence.
The potential for separate lots casts enough doubt to wonder whether the defendant actually entered onto the martial residence. Therefore, the People failed to meet the burden of proving that the defendant was guilty beyond a reasonable doubt.
Based on the above, it is
ORDERED, that the verdict of the Mamakating Town Court is reversed, and it is further
ORDERED, that the charges against the appellant are dismissed.
This shall constitute the Decision and Order of this Court.