Opinion
No. 10375–10382.
11-23-2015
The PEOPLE of the State of New York, v. Ralph BELLOCCO, Defendant.
Anna K. Vikse, Esq., Village Attorney and Prosecutor, Westbury, for the Village, Anna K. Vikse, Esq. Goldstein & Rodriguez, LLP, by Omar Almanzar–Paramio, Esq., Hempstead, for the Defendant, Goldstein & Rodriguez, LLP.
Anna K. Vikse, Esq., Village Attorney and Prosecutor, Westbury, for the Village, Anna K. Vikse, Esq.
Goldstein & Rodriguez, LLP, by Omar Almanzar–Paramio, Esq., Hempstead, for the Defendant, Goldstein & Rodriguez, LLP.
THOMAS F. LIOTTI, J.
A decision and order by the Hon. Thomas F. Liotti, Village Justice.
This is the second decision and order for this defendant involving alleged Building Code violations of a two family home located at 31 Bedford Avenue, Westbury, New York following an inspection of the subject property on April 3, 2015. This is the second decision involving this defendant; the first decision is being issued simultaneously with this one, covering summons numbers 10363 through 10371; at 5 Lexington Avenue, Westbury; a home allegedly owned by this defendant but not occupied by him. The property in issue here is also allegedly owned by this defendant and occupied by him.
There are eight malum prohibitum violations of the Building Code that are alleged. They include:
1. Summons No.10375—Electrical work performed without a license;
2. Summons # 10376—Plumbing work performed without a permit;
3. Summons # 10377—Electrical work performed without a U.L. or C.C.;
4. Summons # 10378—Plumbing work performed without a license;
5. Summons # 10379—Conversion/change of use of c.o.;
6. Summons # 10380—Occupancy without a c.o.;
7. Summons # 10381—Construction/alterations/conversion without permits;
8. Summons # 10382—Renting without permits.
The defendant's motion is nearly verbatim a repetition of his motion made regarding 5 Lexington Avenue. The People's response is likewise similar to its earlier response involving 5 Lexington Avenue.
It has been said that everyone is presumed to know the law except a law student waiting to take a bar examination. Certainly an owner of property is perceived to know of his ownership and the condition of his property and whether the property conforms to Local Laws.
All of the allegations are accompanied by supporting depositions and are based upon direct observations of the premises together with a review of County and Village Building Department records. Accordingly, none of the allegations are made on the basis of hearsay and the elements of each violation have been amply made. Individually and collectively the charges are sufficient for a defense of them.
The defendant's remaining motion to dismiss for failure to provide certified records as part of the charging instruments are without merit or more properly reserved for trial. Similarly, the defendant's contention that because the County lists the property for tax and assessment purposes as a three family that this makes the conversion here a legal one, is also without merit.
Under New York's Home Rule Laws, its Constitution and that of the federal Constitution, Villages and Towns have the exclusive right and power to determine their own zoning. The County does not. The genesis for the County's determination to tax and assess the property as a three family grew out of a decision decided by this Court in People v. Ventura, 3 Misc.3d 1107(A), 787 N.Y.S.2d 680 (N.Y.Just.Ct., 2004). Following that decision the County Assessor at the time, Harvey Levinson, commendably attempted to curtail the spread of illegal occupancies by taxing these homes for commercial usage. Since absentee landlords were renting illegally and making cash profits, the Assessor determined that they should be taxed at a commercial rate but the Assessor has no control over the responsibility for enforcing and maintaining local zoning laws.
Lastly, the defendant alleges that the charges are duplicative and should therefore be dismissed. However, the charges are not duplicitous in that each one alleges different violations supportive of the Village's claim of illegal occupancies. For example, each charge involving illegal plumbing work refers to different sinks or bathrooms, etc. This particularity in pleading is the province of the People and would be duplicitous if the same sinks or bathrooms were referred to in separate charging instruments. They were not. The People could just as easily have added further counts to a charging instrument.
This constitutes the decision and order of the Court. The defendant and all counsel are directed to appear on January 13, 2016 for a disposition or trial.