Opinion
43233/2010
04-09-2012
The People of the State of New York, Plaintiff, v. John DeRaffele, Defendant.
BRIAN D. MURPHY, ESQ. City of New Rochelle For the People THEODORE J. BRUNDAGE, ESQ. Attorney(s) for Defendant
BRIAN D. MURPHY, ESQ.
City of New Rochelle
For the People
THEODORE J. BRUNDAGE, ESQ.
Attorney(s) for Defendant
, J.
The motion in limine is granted
BACKGROUND
Plaintiff seeks an Order excluding "any testimony or evidence by or on behalf of a pre-existing non-conforming use" of the premises known as 867 Weaver Street, New Rochelle, New York. Plaintiff contends that defendant cannot collaterally attack the Building Official's determination that defendant's property does not constitute a pre-existing , non-conforming use without having first appealed said finding to the Board of Appeals on Zoning. Defendant avers that the deprivation of the opportunity to present evidence violates defendant's procedural and due process rights and that it would make it impossible for the court to meet its jurisdictional obligation and authority to determine the facts.
BACKGROUND
Defendant is charged with violations of § 331-11-A [two counts] of the New Rochelle Zoning Code, as well as violations of § 111-8 of the New Rochelle City Code [two counts]. Specifically, the defendant is charged with "causing and permitting the land . . . to be used as a three -family dwelling in an R1-20 Zoning District, a purpose not in conformity with the 2000 Zoning Ordinance of the City of New Rochelle." In addition, it is alleged that the defendant failed to obtain building permits for use as a three-family dwelling, in an R 1-20 District, in addition to two sheds and a rear deck
DISCUSSION
The Board of Appeals on Zoning, ("BAZ") is vested with the authority, inter alia to hear and decide appeals from and/or to review any order, requirement, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law. See, General City Law §81-a(4). The appearance tickets which are the subject of this motion, were issued on or about November 15, 2010 shortly after a fire at the premises. Defendant, rather than seeking an appeal of the Building Official's determination from the New Rochelle BAZ, instead elected to file an Article 78 challenge in Supreme Court. There, he sought a declaratory judgment that the premises constituted a "pre-existing, non-conforming use" as a multi-family dwelling and a revocation of the appearance tickets, in addition to an award of "court costs, research fees, consulting fees, [and] title fees". The appeal was denied, with the court stating in its decision and order, dated January 3, 2011, that ...'no determination shall be challenged in any Article 78 proceeding "which is not final or can be adequately reviewed by an appeal to a court or some other body or officer...'" (emphasis added).
General City Law, §81-a which clearly sets forth the procedure to appeal the New Rochelle Building Official's interpretation of zoning law reads in pertinent part:
4. Hearing Appeals. Unless otherwise provided by local law or ordinance, thejurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination, made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the city. (Emphasis added)
The City Courts' criminal jurisdiction is set forth in the Uniform City Court Act §2001, which states in pertinent part: "(2) [u]nless otherwise specifically prescribed, the practice in the court shall be governed by the criminal procedure law.[emphasis added] In the case at bar, General City Law §81-a otherwise specifically provides the appropriate administrative remedy. "When the 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". People v. Martin, 13 Misc 3d 1231(A); 2006 WL 3076554 (NY Justice Court).
There is ample precedent supporting the proposition that the validity of an underlying administrative order or determination may not be collaterally attacked in a criminal proceeding, for failure to obey its dictates. People v. Martin, supra, People v. Namro Holding Corp., 10 AD2d 702; 198 N.Y.S.2d 56 (1st Dept.); aff'd, 8 NY2d 1113; 171 N.E.2d 893; 209 N.Y.S. 813 (1960). "It has long been held that the propriety of a notice of violation...cannot be collaterally reviewed in a criminal proceeding brought for its disobedience." People v. Second Avenue Woodworking Corp. 2005 NY Misc.Lexis 3405; 234 N.Y.L.J. 5, Crim. Ct. City of NY(July 8, 2005), citing People v. Brooklyn Union Gas Co. N.Y.L.J., Nov. 2, 1983, at 13, col 1 [App Term, 2nd & 11th Jud Dists]; People v. New York Racing Association, et al., 135 Misc 2d 453; 516 N.Y.S.2d 387 (App Term, 2nd Dept., 1986)
The right to present a defense or certain evidence is not absolute and may be curtailed or excluded on notice, procedural or evidentiary grounds. People v. Martin, supra. The CPL is replete with examples limiting a defendant's right to present a defense or introduce certain evidence. For instance, CPL §250.10 sets forth limitations on a defendant's right to provide psychiatric evidence, unless timely noticed. The same is true with the proffer of alibi evidence as a trial defense. (CPL §250.50) In addition, CPL §60.43 limits a defendant's right to present evidence of a victim's past sexual conduct in sex offense cases. Such limitations have been upheld by the United States Supreme Court, Michigan v. Lucas, 500 U.S. 145; 111 S.Ct. 1743 (1991) and the New York Court of Appeals. People v. Almonor, 93 NY2d 571; 693 N.Y.S.2d 861 (1999).
Unlike People v. Martin, supra, which deals with a very similar factual scenario, the case at bar deals with statutory language wherein the pre-existing non-conforming use is set forth as an exception, rather than a proviso, which apportions the respective burdens of proof differently. In the case before us, the People have the burden of proving beyond a reasonable doubt each and every element of the offenses, including the negation of a pre-existing, non conforming use.
Accordingly, based on the foregoing, the motion is granted.
The foregoing constitutes the Decision and Order of this Court.
Dated: April 9, 2012
New Rochelle, New York
Hon. Susan I. KettnerCity Court Judge