Opinion
HUTO 1000-10.
Decided on November 10, 2010.
Cindy Elan-Mangano, Esq., Assistant Town Attorney, Attorney for Plaintiff, Huntington, New York.
Robinson Associates, P.C., Kenneth Robinson, Esq., Attorney for Defendant, Syosset, New York.
Upon the following papers numbered 1-3
Read on this motion by defendant to dismiss
Notice of Motion and supporting papers 1
Affirmation in Opposition and supporting papers 2
Replying Affidavits and supporting papers 3
Filed papers
Other
807 East End Realty Corp.(hereafter "the defendant") moves this Court pursuant to application dated October 19, 2010 seeking the dismissal of three accusatory instruments alleging violations of Chapters 87 and 198 of the Huntington Town Code. Previously, the defendant made application seeking dismissal of these three counts along with two additional counts (Numbers 2 and 5) upon facial sufficiency grounds. Counts Number 2 and 5 were dismissed pursuant to order dated June 30, 2010 with counts 1, 3 and 4 being scheduled for trial of the factually contested issues contained therein. The defendant's pending application asserts the grounds for dismissal sound in "the Interest of Justice" and "Double Jeopardy".
Dismissal in Furtherance of Justice
Defendant's application seeking to dismiss the People's remaining informations, in furtherance of justice, pursuant to CPL § 170.40 and § 170.30 (1) (g), is, in all respects, denied. The application neglects to address any one of the ten (10) factors enumerated in CPL § 170.40 (1) which are:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complaint or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The defendant's § 170.40 application to dismiss the accusatory instrument is limited to the argument that the Court order dated June 30, 2010 under HUTO 97-10 is also applicable to the surviving three counts. Contrary to what was stated there, § 198-27 (d) (3) prohibits the "retail sale of prepackaged food, soft drinks, newspapers, tobacco products, lottery tickets and other similar products, not related to the use and operation of the property as a nonconforming automotive service station or nonconforming automotive repair shop'. See, Huntington Town Code § 198-27. This argument goes to the sufficiency of the accusatory instruments which already has been determined.
It would be an abuse of this Court's discretion to dismiss in the interest of justice, absent a demonstration of one of the enumerated criteria. The Court's § 170.40 discretionary power is to be exercised sparingly and is reserved for rare and unusual cases which cry out for fundamental justice beyond the confines of conventional considerations. People v. Hudson, 217 AD2d 53 (N.Y.A.D. 2 Dept. 1995); See also, People v. Shajaat, 73 AD3d 568 (N.Y.A.D. 1ST Dept. 2010); People v. Insignares, 109 AD2d 221 (N.Y.A.D. 1st Dept. 1985).
Double Jeopardy
Defendant's application to dismiss the information under HUTO 1000-10, charging a single violation of § 198-27 (d) (3) of the Huntington Town Code occurring on July 23, 2010, on the grounds that prosecution thereof is barred by CPL § 40.20 (2) (a), the Double Jeopardy statute, is also denied. The defendant was previously charged with violating Huntington Town Code § 198-122 (a) and § 87.25 (a), for a violation date of October 30, 2009. These two charges were dismissed for facial insufficiency (pursuant to CPL § 170.30 (c)), by the order of this Court dated June 30, 2010. When a dismissal is granted on a motion by defendant without an adjudication on the facts going to guilt or innocence, re-prosecution is permitted ( People v. Key, 45 NY2d 111, 117 (NY 1978)); U.S. v. Scott, 437 U.S. 82 (1978). The defendant, by choosing to seek a determination of the prior proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause ( U.S. v. Scott, supra at 98-99). There was no adjudication on the facts addressed directly or indirectly to plaintiff's guilt or innocence. The only determination made was that the initial pleading was defective. See, People v. Nuccio, 78 NY2d 102 (NY 1991); Ciraulo v. Dillon, 108 Misc 2d 751 (Sp. Ct. Nassau Co. 1981).
Additionally, inasmuch as each day that an offense continues, may by definition constitute a separate offense (Huntington Town Code § 198-148); the defendant has technically not been charged twice with the same offense. To the extent that the defendant seeks to challenge the constitutionality of the "each day is a separate independent offense" statute, it may do so with a fully briefed pretrial memorandum, to be served upon the People twenty (20) days prior to trial.
The defendant is presently charged with violating Huntington Town Code § 198-27 (d)(3) for an offense date of October 30, 2009. The Court notes that the offenses of Huntington Town Code § 198-122 A and Huntington Town Code § 198-27 (d) (3) have substantially different elements from each other. Sec 198-122 A requires proof that the defendant "failed to comply with any condition or requirement imposed by . . . The Huntington Town Board, Planning Board or ZBA as a result of any land use or zoning action, decision or approval". Huntington Town Code § 198-27 (d) (3) requires no proof of failure to comply with a prior order or requirement. Rather it requires proof of retail sale of any of a number of items designated in § 198-122 A which are clearly distinguishable from those elements establishing a violation of Huntington Town Code § 198-27 (d) (3).
Similarly, the elements of Huntington Town Code § 87.25 (A), i.e. the unlawful maintenance, occupying or use of a building, structure, land or part thereof, for which a certificate of occupancy and/or certificate of permitted use has not been issued (or has been revoked or suspended), has substantially different elements than Huntington Town Code § 198-27 (d) (3), which requires proof of retail sale of selected items, in a C-6 general business district. It must be demonstrated that such sale is not related to the use and occupancy of the nonconforming automotive service station or nonconforming automotive repair shop. The acts of retail sale of prohibited items, which are unrelated to the use of the service station/repair shop are also clearly distinguishable from the acts establishing a violation of Huntington Town Code § 87.25A. The offenses previously charged and presently charged are distinct for Double Jeopardy purposes, as each offense alleged requires proof of fact which the others do not. People v. Artis, 74 AD2d 644 (N.Y.A.D. 2 Dept. 1980). For the above reasons, that branch of defendant's dismissal motion, grounded in the Double Jeopardy protection, is denied as without merit.