Opinion
12-11-0119
04-22-2015
The People of the State of New York, Plaintiff, v. Nancy Selig, Defendant.
Attorney for the Town Adrienne Odierna, Esq. VanDeWater and VanDeWater 85 Civic Center Plaza, Suite 101 Poughkeepsie, NY 12601 Attorney for DefendantJennifer Burton, Esq. Dutchess County Public defender's Office 22 Market Street Poughkeepsie, NY 12601
Attorney for the Town
Adrienne Odierna, Esq.
VanDeWater and VanDeWater
85 Civic Center Plaza, Suite 101
Poughkeepsie, NY 12601
Attorney for DefendantJennifer Burton, Esq.
Dutchess County Public defender's Office
22 Market Street
Poughkeepsie, NY 12601
Michael G. Hayes, J.
The following papers were read and considered in deciding this motion:
PAPERS NUMBERED
NOTICE OF MOTION....................................................1
AFFIRMATION IN SUPPORT...................................2
MEMORANDUM OF LAW.........................................3
EXHIBITS......................................................................4-7
ANSWERING AFFIRMATION.....................................8
EXHIBITS......................................................................9-11
This code enforcement action alleges that Defendant is keeping farm animals on her property in violation of the Town of LaGrange Zoning Code. Specifically, Defendant is accused of keeping three goats on a 0.45 acre parcel of residential real property in violation of §240-58(B) of the Town Zoning Code.
This action has been stayed twice since it was commenced in November of 2012. The first stay automatically went into effect while Defendant pursued an application for a variance from the Zoning Board of Appeals ("ZBA"). After that application was denied, the automatic stay was lifted, and this matter was set down for a bench trial.
Approximately one month before that trial date, Defendant filed a complaint with HUD accusing the Town of engaging in discriminatory practices under the Fair Housing Act [42 USC §3601, et seq.]. A second temporary stay went into effect while the Fair Housing Act complaint was investigated by federal officials. That stay expired in October of 2014, after the Department of Justice announced that it had decided not to commence an enforcement action Before the second stay went into effect, Defendant filed a motion with this Court seeking dismissal of this action on the grounds, inter alia, that the information fails to substantially conform to the requirements of CPL §100.15; that the information is facially insufficient; and that the Town Attorney lacks authority to prosecute this action. After the second stay was lifted, Defendant's motion to dismiss was denied by Decision and Order dated January 19, 2015.
The trial of this action is scheduled to commence on April 30, 2015. Defendant now moves to dismiss this action in the interest of justice pursuant to CPL §170.40. For the reasons stated herein, that motion is denied.
Defendant's motion consists of an affirmation of counsel, a memorandum of law, and several unsworn letters. Defendant has not provided an affidavit in support of this motion.
DISCUSSION
An information may be dismissed in the interest of justice when "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." [CPL §170.40(1)]. It is well-settled that this statutory power should be "exercised sparingly and only in that rare and unusual case when it cries out for fundamental justice beyond the confines of conventional considerations." [ People v. Curcio , 22 Misc 3d 907, 915 (Crim. Ct. 2008). See also People v. Keith R., 95 AD3d 65, 67 (1st Dept. 2012); People v. Quadrozzi , 55 AD3d 93, 103 (2d Dept. 2008); People v. Hudson , 217 AD2d 53, 55 (2d Dept. 1995)].The determination of a motion to dismiss in the interest of justice "is not made in a vacuum, isolated from all else; rather, a ruling thereon is based upon the totality of all the circumstances in the particular case." [ People v. Tyler , 46 NY2d 264, 266-267 (1978)]. That determination must consider the statutory factors set forth in CPL §170.40(1) "collectively as well as individually," and must seek to engage in "a sensitive balancing of the interests of the individual against the competing interests of the public." [ People v. Richman , 44 Misc 3d 34, 37 (Sup. Ct. App. Term, 2014), quoting People v. Rickert , 58 NY2d 122, 132 (1983) and People v. Debiasi , 160 AD2d 952, 953 (2d Dept. 1990)].
Weighing the statutory criteria set forth in CPL §170.40, and balancing the interests of the community against those of the accused, the Court concludes that Defendant has failed to demonstrate that this is one of those rare and unusual cases that cries out for the dismissal of an information in the interest of fundamental justice. [ People v. Graham , 39 Misc 3d 35, 37 (Sup. Ct. App. Term, 2013)]. Although the offense charged is only a violation, it nonetheless implicates legitimate environmental and aesthetic considerations for the community at large.[CPL §170.40(1)(a)]. And although some neighbors have submitted letters stating that they do not have any objection to Defendant's goats, other neighbors appeared before the ZBA and objected to Defendant's request for a variance allowing her to continue to keep the goats on her property. [Odierna Affirmation, Ex. B]. Specifically, those neighbors objected on the grounds that the continued presence of the goats will cause harm to property values in the neighborhood. Those neighbors also objected based on the grounds that the goats will have a detrimental impact on the character of the neighborhood, and on the grounds that the goats will have an adverse impact on the physical and environmental conditions in the neighborhood. [CPL §170.40(1)(b)].
Defendant concedes that she "cannot deny the fact that she had three goats on her property." [Memorandum of Law, p.6]. In addition, a lot must be at least 240,00 square feet (i.e., approximately 5.5 acres) in order to keep three goats on residential property [Town Code §240-58]. Defendant has less than 10% of the minimum acreage required to keep three goats on her property. Therefore, there is compelling evidence of Defendant's guilt of the offense charged [CPL §170.40(1)(c)].
Defendant has no prior criminal record. Defendant asserts that she is on disability, and that she leads a very isolated existence as a result of serious psychological issues that prevent her from engaging in social activities. Defendant asserts that her goats are therapeutic and provide emotional support, and that she did not intend to harm or upset anyone in the neighborhood. Defendant has also produced an August 22, 2013 letter from a licensed psychologist who has treated Defendant since February 10, 2011. In that letter, the psychologist confirms that Defendant suffers from "depression, acute anxiety, panic attacks , daily stress and social anxiety." The psychologist also states that he has prescribed the use of three emotional support/therapy goats to alleviate her symptoms of panic, anxiety, stress, and social anxiety, and that the presence of these goats is necessary for her mental health. Defendant has also produced a letter from a veterinarian vouching for Defendant's care and treatment of her goats, and stating that goats have the capacity to form "a very strong human-animal bond that is beneficial to both parties involved." [CPL §170.40(1)(d)].
The psychologist's letter was written nine months after this action was commenced. Although the letter states that Defendant was under the psychologist's care for more than a year and a half prior to the commencement of this action, the letter is silent as to the date that the psychologist actually prescribed the use of three emotional support/therapy goats.
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There is no evidence of exceptionally serious misconduct by law enforcement personnel. [CPL §170.40(1)(e)]. The purpose and effect of the authorized sentences available to the Court for the offense charged is consistent with the fair administration of justice. [CPL §170.40(1)(f)].
A dismissal of the information would impair public confidence in the justice system.
Specifically, Defendant kept three goats on her property in violation of the Town Code for over two years while pursuing her application for a variance before the ZBA and pursuing her Fair Housing complaint. Although Defendant removed the goats from her property after she failed to secure relief from the Town Code, there is no guarantee that Defendant would remain in compliance with the law if this action was dismissed in the furtherance of justice. The public's confidence in our system of justice would also be impaired if the information was dismissed at this late juncture, one week prior to trial and nearly 2½ years following the commencement of this action, after Defendant's protracted efforts to resist compliance with the Town Code proved unsuccessful, and after her motion to seek dismissal of this action on technical and procedural grounds was denied. [CPL §170.40(1)(g)].
The New York State Legislature has expressly "authorized towns to enact zoning laws for the purpose of fostering the health, safety, morals, or the general welfare of the community.'" [ Wallach v. Town of Dryden , 23 NY3d 728, 742 (2014), quoting Town Law §261. See also Town Law §272-a(1)(b) ("Among the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planing and to regulate land use for the purpose of protecting the public health, safety and general welfare of its citizens"); Matter of Sun-Brite Car Wash , Inc ., v. Board of Zoning and Appeals of Town of North Hempstead , 69 NY2d 406, 412 (1987) ("Zoning ordinances are a proper exercise of the police power because they are enacted to protect the health, safety and welfare of the community"); Zupa v. Paradise Point Association , Inc., 22 AD3d 843 (2d Dept. 2005) ("Zoning ordinances are enacted to protect the health, safety and welfare of the community")]. Here, the zoning law that the Town seeks to enforce was enacted to prevent farm animals from being kept in a manner that impairs the residential character of a neighborhood or creates a hazard to health [Town Code §240-58(D)]. Dismissal of the information in the interest of justice would negatively impact the safety and welfare of the community. [CPL §170.40(1)(h)].
The Court is sympathetic to Defendant's desire to identify and benefit from therapeutic modalities that alleviate the symptoms of her psychological issues. The Court is also cognizant of the Town's legitimate interest in protecting the health, safety and welfare of the public through the enforcement of its zoning laws. Ultimately, considering the relevant statutory factors collectively and individually, and balancing the interests of the accused against those of the community, the motion to dismiss the information in the furtherance of justice is denied under the totality of the circumstances. Based on the foregoing, it is hereby
ORDERED, that Defendant's motion to dismiss in the interest of justice is denied; and it is further
ORDERED, that the trial of this matter shall proceed on April 30, 2015 at 6:00 pm as previously scheduled.
The foregoing constitutes the Decision and Order of this Court.
Dated:LaGrange, NY
April 22, 2015
____________________________________
MICHAEL G. HAYES
TOWN JUSTICE