Town Violation/Municipal Violation Overturned, Insufficient Evidence
Long Island Town and Village Code: Have you ever been charged with violating the “code”? Has code enforcement tried to enter your home? You can and should refuse entry without a warrant. Throughout Long Island, code enforcement by incorporated villages and towns often result in (some very valid) criminal charges for violating the “code.” This can be anything from converting a garage to living space or not mowing the lawn. Here, the defendant was accused an convicted of “violating section 275-5 of the Code of the Town of Southold, in that he had constructed “stairs within 100′ of the bluff line without a permit from the Board of Trustees.”
The case is The People v. Martino, 2013-2134 S CR, NYLJ 1202741291489, at *1 (App. Tm., 2nd, Decided September 18, 2015) and Section 275-5 (A) of the Code of the Town of Southold provides that “[n]otwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (§275-3C) [sic] without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect.”
In specifying the provisions which the Defendant here supposedly violated, Section 275-3 (C) of the Code of the Town of Southold provides that “Land within 100 feet of the [bluff]” is protected under Section 275-5(A). The Town of Southhold brought these charges yet never determined whether the stairs that Martino erected were actually within 100 feet of a bluff. Defendant went to trial where a judge sat in judgment of the law and the facts. After being convicted, the defendant put several arguments forward on appeal. The Appellate Court, however, evaluated the evidence poised against Martino and determined that it was not legally insufficient:
The testimony of a bay constable was aided by the admission into evidence of three photographs of the stairs in question. However, the bay constable never testified where the bluff line was on the photographs. He never testified that the stairs were on land within 100 feet of a bluff. The bay constable merely “guess[ed]” that the stairs were within the jurisdiction of the Board of Trustees. The Chairman of the Town of Southold Board of Trustees, who was a witness for the prosecution, never testified that the incline arising from the beach on defendant’s property on which the stairs were located was steep enough to constitute a bluff. His testimony as to where the bluff line was on defendant’s property was based on an approximation. While he testified that “[w]etland jurisdiction is one hundred feet of vegetation wetland and fresh water wetland is also one hundred [feet] from the wetlands,” he never specifically testified that the stairs were within 100 feet of a bluff. The photographs merely show stairs going from the rear of a property to the beach and the sound. They do not contain any measurements. Thus, defendant’s conviction of violating Section 275-5 of the Code of the Town of Southhold was based on legally insufficient evidence.
Conviction overturned: the appeal was successful. This is an important reversal because of the number of these criminal charges brought which are sometimes without merit and the result if challenged. If the Defendant had merely plead guilt, it is likely the Defendant would have to remove these stairs and paid a hefty fee and/or fine in doing so. By hiring an attorney and fighting the charges, Martino keeps the stairs and does not have to pay the $4,000 fine….
Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) | (954) 998-2918 (FLA) - representing people facing accident, accountability and addiction matters - because the problems surrounding a criminal charge do not necessarily end in a criminal court anymore...
