Opinion
2017-1627 S CR
02-28-2019
The PEOPLE of the State of New York, Respondent, v. Marion FEHRENBACH, Appellant.
Judith N. Berger, for appellant. Office of the Brookhaven Town Attorney (Deirdre Cicciaro of counsel), for respondent.
Judith N. Berger, for appellant.
Office of the Brookhaven Town Attorney (Deirdre Cicciaro of counsel), for respondent.
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
Appeal from three judgments of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered August 18, 2017. The judgments convicted defendant, after a nonjury trial, of violating three sections of the Brookhaven Town Code by littering and dumping, maintaining an accessory structure without a building permit, and occupying or using property with an accessory structure without a certificate of occupancy, respectively, and imposed sentences. The appeal from the judgments brings up for review so much of an order of that court dated December 30, 2016 as denied the branches of defendant's motion seeking the court's recusal and the dismissal of the accusatory instruments on the grounds of facial insufficiency and that the charged Brookhaven Town Code sections were unconstitutionally vague as applied, or, in the alternative, an order directing the People to provide a bill of particulars.
ORDERED that the judgment convicting defendant of littering and dumping is affirmed; and it is further,
ORDERED that the judgments convicting defendant of maintaining an accessory structure without a building permit and occupying or using property with an accessory structure without a certificate of occupancy are reversed, on the law, the accusatory instruments charging these offenses are dismissed, and the fines imposed thereon, if paid, are remitted.
Insofar as is relevant to this appeal, in April 2016, three informations were filed charging defendant, as the owner of certain specified property, with littering and dumping in violation of Brookhaven Town Code (Code) § 45-4 (D), maintaining an accessory structure without a building permit in violation of Code § 85-12 (A), and occupying or using property with an accessory structure without a certificate of occupancy in violation of Code § 85-15 (A), respectively. In or about June 2016, defendant's attorney, who worked for "The Coalition of Landlords, Homeowners & Merchants, Inc.," served the People with, among other things, a demand for a bill of particulars, pursuant to CPL 200.95, which sought the "exact location of each and every condition alleged to constitute a violation ... of the Code of the Town of Brookhaven as to the property." The People provided a written response in which they stated that defendant is not entitled to a bill of particulars, as a bill of particulars is a written statement specifying factual information not recited in the accusatory instrument and, "[h]ere, the allegations in the information against the defendant are among the simplest in nature and merely require the use of a dictionary to help even the most uneducated of persons understand their meaning." Thereafter, defendant filed an omnibus motion seeking, among other things, the recusal of Judge Flanagan and the dismissal of the informations on the grounds of facial insufficiency and that the charged Code sections are unconstitutionally vague as applied, or, in the alternative, an order directing the People to provide a bill of particulars. In an order dated December 30, 2016, the District Court, among other things, denied the aforementioned branches of defendant's motion.
Following a nonjury trial, defendant was convicted of the three charges and was sentenced, with respect to the littering and dumping conviction, to a $2,000 fine and a conditional discharge providing her with 60 days to remedy the condition and, with respect to the building permit and certificate of occupancy convictions, to a $4,000 fine and a conditional discharge on each, whereby defendant had to obtain a building permit within 60 days and a certificate of occupancy within 120 days thereafter.
On appeal, defendant contends that the District Court improperly denied the aforementioned branches of her omnibus motion. Defendant also contends that she was denied a fair trial due to Judge Flanagan's bias against her, that the lack of a bill of particulars deprived her of due process, and that the sentences imposed constituted cruel and unusual punishment.
Code § 45-4 (D) states, among other things, that "[a]ny person owning, occupying or in control of private property shall maintain such property, including the sidewalk in front thereof, free of litter." Code § 45-2 defines (1) "litter" as "All waste material, including plastic six-pack holders, rubbish, liquid waste and garbage, which tends to create a danger to public health, safety and welfare and/or which creates an unsightly condition," and (2) "rubbish" as "Nonputrescible solid wastes consisting of both combustible and noncombustible wastes, including but not limited to paper, wrappings, cigarettes, cardboard, tin cans, yard clippings, wood, glass, bedding, crockery and similar materials, and the carbon component of energy waste, whether in solid or gaseous form." A review of the information charging a violation of Code § 45-4 (D) indicates that it contains the town inspector's nonhearsay allegations that, at a specified time, he had observed litter on defendant's property which consisted of, among other things, "scraps of wood" (i.e., rubbish) and "scraps of plastic" (i.e., litter) which created "an unsightly condition." These allegations were sufficient to establish, if true, every element of the offense charged (see CPL 100.15 [3] ; 100.40 [1] [c]; People v. Dumas , 68 NY2d 729, 731 [1986] ). They also provided defendant with sufficient notice to prepare for trial, and were adequately detailed so that she could not be tried again for the same offense (see People v. Sedlock , 8 NY3d 535, 538 [2007] ; People v. Konieczny , 2 NY3d 569, 575 [2004] ; People v. Casey , 95 NY2d 354, 360 [2000] ). Consequently, there was no basis to dismiss the accusatory instrument charging a violation of Code § 45-4 (D) on the ground of facial insufficiency.
Code § 85-12 (A) provides that "[n]o building or structure shall be ... maintained until a building permit ... therefor has been issued." Code § 85-15 (A) provides that "[n]o land shall be occupied or used ... until a certificate of occupancy shall have been issued ... stating that the building or structure ... complies with the provisions of this chapter." The informations charging defendant with these respective violations allege that defendant owned the property in question, and did not have a building permit or certificate of occupancy for an "accessory structure" located thereon. In the District Court, defendant argued that these informations were facially insufficient because the term "accessory structure" did not provide sufficient notice so that she could prepare for trial and not be tried again for the same offense. Defendant also demanded a bill of particulars in order to obtain details as to what the People were referring to as an accessory structure, which the People refused to provide.
It is well settled that the law does not require that an information contain the most precise words or phrases which most clearly express the thought; however, the offense must be sufficiently alleged and a defendant provided with sufficient notice so that the defendant can prepare for trial, and the factual allegations must be adequately detailed so that the defendant can not be tried again for the same offense (see People v. Sedlock , 8 NY3d at 538 ; People v. Konieczny , 2 NY3d at 575 ; People v. Casey , 95 NY2d at 360 ). The " 'determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the [accusatory instrument] and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances' " ( People v. Sedlock , 8 NY3d at 539, quoting People v. Morris , 61 NY2d 290, 295 [1984] ). Here, the informations charging a violation of Code §§ 85-12 (A) and 85-15 (A) merely state "accessory structure" without providing a description thereof or a location of the structure on the property. Considering that, as the People state in their respondent's brief, defendant's property consists of five acres and contains "multiple accessory structures," we find that the factual allegations of the informations—contrary to the People's assertion that "the allegations in the information ...merely require the use of a dictionary to help even the most uneducated of persons understand their meaning"—did not provide defendant with sufficient notice to prepare a defense and were not adequately detailed so that defendant could not be tried again for the same offense (see People v. Sedlock , 8 NY3d at 538 ; People v. Konieczny , 2 NY3d at 575 ; People v. Casey , 95 NY2d at 360 ; People v. Jalloh , 53 Misc 3d 148[A], 2016 NY Slip Op 51634[U], *1 [App Term, 1st Dept 2016] ). Consequently, the informations charging defendant with violating Code §§ 85-12 (A) and 85-15 (A) must be dismissed. In view of the foregoing, we do not address defendant's remaining contentions regarding these charges.
With respect to Code § 45-4 (D), defendant argues on appeal that it is unconstitutionally vague as applied to her because "[i]t is beyond reasonable doubt that useful items are not considered litter in ordinary word usage. Therefore, Defendant was not given clear notice that useful items would constitute litter under the code." It is noted that town ordinances are afforded an "exceedingly strong presumption of constitutionality" ( Lighthouse Shores v. Town of Islip, 41 NY2d 7, 11 [1976] ; see also People v. Stephens, 28 NY3d 307, 312 [2016] ; Brady v. State of New York , 80 NY2d 596, 602 [1992] ), and should " 'be construed so as to avoid constitutional issues if such a construction is fairly possible' " ( People v. Stephens, 28 NY3d at 312, quoting FGL & L Prop. Corp. v. City of Rye , 66 NY2d 111, 120 [1985] ).
We find that Code § 45-4 (D) is sufficiently definite to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden (see People v. Stephens , 28 NY3d at 312 ; People v. Nelson , 69 NY2d 302, 307 [1987] ). Code § 45-2 clearly defines what materials constitute litter and rubbish, and the term "unsightly condition" has a long-standing accepted meaning in law and cannot be said to be so vague and indefinite as to afford defendant insufficient notice of what is prohibited "even though there may be an element of degree in the definition as to which estimates might differ" ( People v. Stephens , 28 NY3d at 313 [internal quotation marks omitted]; see also People v. Cruz , 48 NY2d 419, 428 [1979] ). Indeed, the United States Supreme Court has used the term "unsightly condition" when referring to "conditions adversely affect[ing] the economic values of neighboring structures" ( Camara v. Municipal Ct ., 387 US 523, 535 [1967] ). Code §§ 45-4 (D) and 45-2 provide officials with clear standards for enforcement so that resolution is not made on a subjective basis which would allow for arbitrary and discriminatory application (see People v. Stephens , 28 NY3d at 312 ).
With respect to the branch of defendant's omnibus motion seeking the recusal of Judge Flanagan, a review of the record indicates that no direct, personal, substantial or pecuniary interest in the court's reaching a particular conclusion has been shown to exist, and there is no clash in judicial roles (see People v. Alomar , 93 NY2d 239, 246 [1999] ; People v. Angel , 39 Misc 3d 149[A], 2013 NY Slip Op 50946[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ). Since there was no express violation of Judiciary Law § 14, it was up to the conscience and discretion of Judge Flanagan to decide whether or not to recuse himself (see People v. Moreno , 70 NY2d 403, 405-406 [1987] ; People ex rel. Smulczeski v. Smulczeski , 18 AD3d 785 [2005] ; People v. Angel , 39 Misc 3d 149[A], 2013 NY Slip Op 50946[U], *3), and the determination to deny a recusal motion "will not be lightly overturned" (Matter of Khan v. Dolly , 39 AD3d 649, 650 [2007] ). Here, no sufficient basis to disturb the court's determination was shown.
With respect to defendant's remaining conviction for littering and dumping, we find that the sentence imposed did not constitute cruel and unusual punishment, as there is no clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist which require a modification of the sentence (see People v. Dolphy , 257 AD2d 681, 685 [1999] ).
Accordingly, the judgment convicting defendant of littering and dumping is affirmed. The judgments convicting defendant of maintaining an accessory structure without a building permit and occupying or using property with an accessory structure without a certificate of occupancy are reversed and the accusatory instruments charging these offenses are dismissed.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur. ENTER: