PEOPLE v. BRAUN BROTHERS BRUSHES (2007)

Motion to dismiss the summons and informations by the defendant Braun Brothers Brushes Inc., under CPL 170.30(1)(f) is determined as hereinafter provided.

The defendants, Braun Brothers Brushes, are charged with two violations of the Village Code of the Incorporated Village of Valley Stream (1) no certificate of occupancy for business on the premises of 35 Fourth Street, Valley Stream, New York under Section 99-3211 of the Village Code and (2) no permit to run a business from the premises on 35 Fourth Street, a violation of 99-3206 of the Village Code. The defendants now move to dismiss on two separate grounds.   First, (1) that the service of process was improper under CPL Section 150.40(2) (a new section of the State law) and, (2) that the current use of the premises is a non conforming use established before the relevant zoning code was placed in effect.

I. Constitutionality of CPL 150.40(2)

Section 150.40(2) of the Criminal Procedure Law reads as follows:

An appearance ticket other that one issued for a traffic infraction relating to parking, must be served personally, except that an appearance ticket issued for the violation of a local zoning ordinance or a zoning law or of a building or sanitation code may be served under any manner authorized for service under Section 308 of the Civil Practice Law and Rules.

Originally, except for parking, all service of process of appearance tickets had to be done personally.   The exception occurred with the passage of Chapter 415 of the Laws of 2004 as amended (Laws 2005, Chapter 642) that expanded the use of service of process on certain exceptions to local ordinances.   According to the New York State Senate memorandum in support, this law allows the appearance ticket to be served either personally or by “ substituted service” as presently provided under Section 308 of the Civil Practice Law and Rules.   This procedure “would make it easier and less time consuming to serve the defendants with appearance tickets for violation of local zoning, building and sanitation ordinances.”  (See McKinney's 2004 Session Laws of New York, Vol. 2, at page 1907.)

The Court notes that a violation of local laws such as in the case at bar, are governed under the CPL People v. Hacker, 76 Misc.2d 610, 350 N.Y.S.2d 67 (Suffolk Dist. Ct.1973).

There is no question that violations of local zoning, building or sanitation codes are key to the quality of life in any municipal community.   Effective service of process will bring those individuals to court at the appropriate time to resolve these issues of local concern.   This law was enacted because of certain situations where service could not have been effectively made and, therefore, the individuals were not properly notified, if at all, of the cases that were pending before a local court.   This delay of justice results in a lengthy period of time where violations remained uncorrected and may result in further charges.

In the case at bar, defendant moves to dismiss the action based upon the alleged unconstitutionality under the Federal and New York State Constitutions of Section CPL 150.40(2).   It has been long established as a matter of law that a presumption exists as to the constitutionality of validly enacted statutes.  People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003);  People v. Murphy, 70 N.Y.2d 969, 525 N.Y.S.2d 834, 520 N.E.2d 552 (1988).   The burden of proof is heavy on the moving party to put forth beyond a reasonable doubt that the statute is unconstitutional.  People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123 (2000);  Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

The service of process requested here is a form of substituted service under CPLR 308.   Under this section of the Civil Practice Law and Rules, delivery can be made personally as is the case under the Criminal Procedure Law or it can be made under several other options including such traditional means as serving a person of suitable age and discretion at the place of business or home as well as a subsequent mailing.   Under these situations, service is usually effective but it does not necessarily conform with the original enactment under the Criminal Procedure Law which consists of personal delivery, except for parking tickets under the original CPL 150.40(2).   In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927), the United States Supreme Court recognized for the first time that service in a civil action by registered mail, in place of personal service, may satisfy the requirements of due process.   Since then, both Federal and New York State Courts have expanded the concept of acceptable service in accordance with due process principles.   Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977);   McCann v. Scaduto, 71 N.Y.2d 164, 524 N.Y.S.2d 398, 519 N.E.2d 309 (1987);   Ballard v. HSBC Bank USA, 6 N.Y.3d 658, 815 N.Y.S.2d 915, 848 N.E.2d 1292 (2006).   Under the New York statutory schemes, CPLR 308 remains one of the primary means of notifying and bringing the parties together in court in a civil action.   Section CPLR 308 has been constitutionally upheld, even in those situations where the court independently designs its own means of effective service of process.  Dobkin v. Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (1968).   However, the purpose of civil process and criminal process is fundamentally different.

While service of process on the parties in a civil case is vital to the action, it is not the situation in a criminal case.   This is because a civil case brings two private parties before the court to address what is almost always a private dispute.   In a civil case, personal jurisdiction is established by service of process on the appropriate parties and must be filed with the court, along with the purchase of an index number.  CPLR 306;  304;  306-A. Harris v. Niagara Falls Board of Education, 6 N.Y.3d 155, 811 N.Y.S.2d 299, 844 N.E.2d 753 (2006).   However, a criminal action is commenced by the state to address a public wrong.   Jurisdiction of the court is, therefore, acquired by the filing of a legally sufficient accusatory instrument with the local criminal court.  People v. Grant, 16 N.Y.2d 722, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965), Shirley v. Schulman, 78 N.Y.2d 915, 573 N.Y.S.2d 456, 577 N.E.2d 1048 (1991).   For example, in People v. McFarlane, 130 Misc.2d 70, 494 N.Y.S.2d 826 (Crim. Ct. N.Y. County 1985), the court found that the defendants had not been personally served and, therefore, held service was improper.   However, the court did not dismiss the criminal action since an information had been filed, thus providing the court with jurisdiction.   The court reasoned that since the only purpose of service of criminal process is to notify the defendant of the pending criminal action, service or process, properly or improperly, does not provide the court with jurisdiction over a particular case.   Due to the fact that the criminal action remained opened, the court ordered that the defendant appear or that a warrant would be issued.   In People v. Coore, 149 Misc.2d 864, 566 N.Y.S.2d 992 (Yonkers City Court 1991), an appearance ticket incorrectly directed the defendant to appear in a city court of Mount Vernon while the accusatory instrument had been correctly filed in the City of Yonkers.   The court declined to dismiss the charges indicating that an appearance ticket was merely an invitation to appear and the filing of an accusatory instrument, not the appearance ticket, gave the court jurisdiction.   On occasions where courts have been inclined to dismiss violations due to improper service of process, the true ground was either as a result of the interest of justice or to the fact that the accusatory instruments were insufficient as a matter of law.  People v. Gross, 148 Misc.2d 232, 560 N.Y.S.2d 227 (Kings County Criminal Court 1990).  People v. Neuberger, 149 Misc.2d 1, 570 N.Y.S.2d 256 (Kings Co. Court 1991).

Substituted service on a defendant in a criminal action has already been accepted when service on a corporation is in question.  CPL 600.20.   In People v. Sage Realty Corp., 155 Misc.2d 832, 590 N.Y.S.2d 660 (Crim Ct. N.Y. County 1992), the defendant corporation was served by way of the Secretary of State of the State of New York as a duly designated agent of corporate service pursuant to Business Corporation Law 340(a) and 360(b) in accordance with CPL 600.20(1).   In this situation, service occurred in Albany County, far from where the original action had commenced.   Nevertheless, the court upheld the service as proper and the defendant corporation was convicted in absentia and fined.

 Therefore, it would appear that the change in law under CPL 150.40(2) is more procedural in nature and not a constitutional due process concern.   Considering that the key to any criminal action is the filing of an appropriate accusatory instrument, the means in which a defendant arrives at court is not the key to commencing the criminal action.  People v. Lowry, 184 Misc.2d 306, 708 N.Y.S.2d 811 (Appl.Term 2000).   The appearance ticket is simply a letter of invitation.   In addition to service of an appearance ticket, a criminal court summons under CPL 130 can be issued or an arrest warrant under CPL 140.   In any event, once it is established that a sufficient accusatory instrument is filed the type of service is of little consequence.   For example, there is no right in a criminal action for an attorney to file a “special appearance” to contest jurisdiction.  People v. Byfield, 131 Misc.2d 884, 502 N.Y.S.2d 346 (N.Y. Co.1986).   Therefore, based upon the aforementioned, it is clear that CPL 150.40(2) passes muster under both Federal and New York State constitutional standards.

II. Non-conforming Use

The defendants are the owners of a property which consists of a residential house and a garage.   The garage or shed area has been used for the storage and assembling of brushes for sale to various businesses.   The basement is used for storage.   The main floors of the building are used as a small office and the upstairs as a place of residence.   The use of the property appeared to have commenced shortly after April 7, 1942 where it was originally used as a chicken coop.   Thereafter, the brush business commenced and has been in continuous use at every time since then.   The defendant now moves to dismiss the action pursuant to CPL 170.30(1)(f) on the grounds that the information is defective against the defendant as a matter of law.   The grounds on this motion is that a valid non-conforming use was established on the premises which predates the relevant zoning codes of the Incorporated Village.

 A non-conforming use has been defined as a use of land which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although does not comply with the use restrictions applicable to the area in which it was situated.  Spilka v. Town of Inlet, 8 A.D.3d 812, 778 N.Y.S.2d 222 (3rd Dept.2004).   A prior non-conforming use means that any use that was legal when it was established can, if not abandoned or otherwise expressly changed, be continued indefinitely despite a change in local ordinance making such use illegal.  Town of Clarkstown v. MRO Pump and Tank, Inc., 32 A.D.3d 925, 822 N.Y.S.2d 576 (2d Dept.2006). Therefore, if the defendant in the case at bar can establish a valid non-conforming use, then the charge of failure to possess a certificate of occupancy shall be dismissed since the valid non-conforming use would predate the need for a certificate of occupancy.  People v. Burns, 115 Misc.2d 897, 454 N.Y.S.2d 807 (Oswego City Ct.1982);  Forjone v. Bove, 280 A.D.2d 948, 720 N.Y.S.2d 869 (4th Dept.2001).

 A prior non-conforming use is an affirmative defense to be proved by the defendant charged with violating the zoning ordinance.   People v. Waring, 110 Misc.2d 392, 441 N.Y.S.2d 872 (Oswego City Court 1981).   For evidence to be sufficient to raise the defense of a prior non-conforming use, the defendant's evidence is required to be not iron clad but of a substantial nature.  Burns, Supra at 904, 454 N.Y.S.2d 807.   Once this defense has been successfully raised, it is the burden of the prosecutor to disprove the defense beyond a reasonable doubt.  Burns, Supra at 902, 454 N.Y.S.2d 807.

 In the case at bar, the defendant has shown by substantial evidence that a non-conforming use existed on the property prior to the enactment of the appropriate Village zoning code.   Affidavits have been presented to the court which indicate that the property has been used as a brush business since the 1940's.   It should be noted that Valley Stream has had three significant zoning codes enacted, the first in 1929, the second during the postwar period in 1952 and lastly in the current times in 1990.   Under the 1929 code, the property was under proper zoning use.   The 1952 code was a watershed document where more properties were required to obtain certificates of occupancy.   However, the facts clearly indicate that the property was in use as a brush business throughout the 1940's and indeed the last serious construction project on the property was concluded in mid-1951, well over a year before the 1952 code went into effect.   A permit was filed at that time.   The court notes as a matter of law that construction under a validly issued permit where the property is a non-conforming use would validify such a use.   Jaffee v. RCI Corp., 119 A.D.2d 854, 500 N.Y.S.2d 427 (3rd Dept.1986).   People v. Denham, 74 Misc.2d 816, 345 N.Y.S.2d 918 (Suffolk Co. Dist. Ct.1973).

It is also of significance that in 2003 the Village issued the defendant a mercantile permit to continue and conduct the commercial business that was in effect on the premises.   The permit was a renewal of a previous mercantile permit.   The mercantile permit will continue to be in effect until 2008.   A mercantile permit can only be revoked after the hearing by the Village Board.   According to the Village code, registering a business with a mercantile permit ensures that all businesses are in suitable zoning areas and meet fire protection and structure standards.   The issuance of a mercantile permit and other permits of this nature may under certain circumstances act as a complete defense to the violation.  Town of Mentz v. Crandall, 288 A.D.2d 841, 732 N.Y.S.2d 778 (4th Dept.2001).   Indeed, this court finds it contradictory that the Village seeks to find the defendant guilty for not having a certificate of occupancy when, for the very same purpose and use, they have granted the defendant a mercantile permit.

The court is satisfied that the defendant has raised a sufficient defense of a prior non-conforming use of a substantial nature.   It is also noted that the People have been unable to sufficiently rebut this presumption now that it has been set forth.  Burns, Supra at 904, 454 N.Y.S.2d 807.   Therefore, the defense has satisfied its burden of proof and the summons and information should be dismissed as a matter of law.

This decision shall constitute the memorandum and order of the court.

So ordered.

ROBERT G. BOGLE, J.