PEOPLE v. RICHARD FIORE QUALAMAR CORP (2004)

Appeal by defendant from a judgment of the City Court, City of Newburgh, Orange County (J. Patsalos, J.), rendered on April 29, 2003 following a non-jury trial, convicting defendant of violating Code of Ordinances of the City of Newburgh § 183.14(A)(4) and imposing a fine.   The appeal from the judgment of conviction brings up for review a decision of the same court and justice, entered March 11, 2003, denying defendant's motion to dismiss the accusatory instrument.

Judgment of conviction unanimously affirmed.

The court below properly held Code of Ordinances of the City of Newburgh § 183.14(A)(4) to be constitutional.   Contrary to defendant's contention, the requirements of procedural due process are notice and an opportunity to be heard, which were provided in this case (see e.g. Kennedy v. Mossafa, 100 N.Y.2d 1, 759 N.Y.S.2d 429, 789 N.E.2d 607 [2003];  Garden Homes Woodlands Co. v. Town of Dover, 95 N.Y.2d 516, 720 N.Y.S.2d 79, 742 N.E.2d 593 [2000] ), not an opportunity to cure (see Dept. of Hous. Preservation & Dev. v. De Bona, 101 A.D.2d 875, 476 N.Y.S.2d 190 [1984] ).   A requirement of notice to abate a nuisance, to which defendant compares the proceedings against him, attaches only where the owner has no notice of the condition and cannot be charged with actual or constructive knowledge of it, for example, where a violation exists within demised premises (Matter of 300 West 154th St. Realty Co. v. Department of Bldgs. of City of N.Y., 26 N.Y.2d 538, 543, 311 N.Y.S.2d 899, 260 N.E.2d 534 [1970];  People v. Brown, 115 Misc.2d 277, 454 N.Y.S.2d 174 [1982] ).   Putting out garbage at a public curbside does not fall within this category, and imposing a fine upon defendant for such a violation at least encourages him to see that his tenants comply with the ordinance in the future, whether through a superintendent or property manager or by other means.   In any event, the ordinance at issue regulates the time and place of putting out garbage for collection.   This activity is a normal part of municipal living, and cannot be considered a nuisance of the kind addressed by Matter of 300 West 154th St. Realty Co. and similar cases, any more than is parking in a no-parking zone, for which, in general, no opportunity to cure is provided prior to ticketing and even towing.

For the same reasons, the court below properly denied defendant's pretrial motion, made on essentially identical grounds, to dismiss the accusatory instrument.