This Court has issued a search warrant for premises known as 585 Rutland Street, Westbury, New York and, prior to doing so, determined that probable cause existed for the issuance of that warrant. In this case, the Court has scrupulously adhered to the recommendations contained in the American Bar Association Task Force Report for the issuance of search warrants. Thomas F. Liotti, Guidelines For The Issuance of Search Warrants, The ABA Initiative, The Nassau Lawyer, February, 1991 at 20; New York State Bar Journal, December, 1991 at 28; and Outside Counsel, New York Law Journal, February 25, 1991. Among other things the Report recommended that ex parte search warrant applications be heard under oath and on the record before a neutral magistrate. While this Court is not a so-called court of record, the minutes of the warrant application are preserved and will be made available to the prosecutor, the defendant and her counsel, together with the actual application, any exhibits attached to it and the return on the warrant. The return on the warrant contains anything seized during its execution.

The warrant has been returned and the defendant now comes before the Court for [*2]arraignment. There are seventeen charges now pending. Some of the charges are alleged to be second and third offenses, and as a result carry enhanced potential penalties with them upon conviction. The defendant is also faced with a potential jail sentence of approximately five months if convicted on all charges and if the Court consecutively sentenced the defendant. The defendant is an alleged absentee owner/landlord of a purported single family home which she allegedly rented out illegally to more than one family. See McMinn v. Town of Oyster Bay, 66 NY2d 544, 498 NYS2d 128, 488 NE2d 1240 (1985). This Court views these cases as being extremely serious because the overcrowding in these dwellings creates a serious risk to human life, both in the dwelling and surrounding homes. They also cause a depreciation in property values and an untaxed burden on the School District and other municipal services. See People v. Ventura, (State Reporter Ref. No. QXK000666) (edited for publication) and New York Law Journal, May 25, 2004 at 1, 17, 19 & 20, Evidence of Overcrowded, Illegal Two-Family Home Suppressed as Exceeding Search Warrant and People v. Ventura, 6 Misc 3d 1001(A), 800 NYS2d 354 (2004), NY Slip Op 51695(u). The defendant here, if convicted, may receive a jail sentence and substantial fines. See also People v. Suppa, October 8, 1997, New York Law Journal at 1, 25 and 28.

In the Ventura case the Court established Guidelines for the issuance of search warrants in the Incorporated Village of Westbury as follows:

Honorable Thomas F. Liotti

Village Justice

Incorporated Village of Westbury

The legal standard is "probable cause plus..."

The sworn affidavit(s) in support of the search warrant should set forth:

The basis for probable cause to believe that there are alleged building code violations at a certain location; and

That there is a substantial governmental interest; that the inspection is necessary to further a regulatory scheme and that the inspection program provides for a constitutionally adequate substitute for a warrant by advising the individual or target(s) of the search that their consent is requested pursuant to law and by a person legally authorized to ask for it; and

That attempts have been made of homeowners and tenants to obtain the consent for the search and to apprize both homeowners and tenants of the nature of the alleged violations (in English [*3]and such other language as may adequately apprize the owners and occupants of the premises of these issues). Notices should indicate that this is a request for a search and not obligatory. The notice should indicate that the homeowners and tenants are not required, in the absence of a warrant, to admit police or inspectors to the premises; and if consent is not granted, that the Village may then apply for a search warrant which will, if granted, allow for a search without consent; and

The prior notices provided to homeowners and tenants should be personally served and served by mail (certified and regular) on homeowners and occupants. An affidavit of service with a copy of the notices should be attached to the warrant application; and

The notices should also include a statement or reference as to where legal housing may be obtained and what organizations may be contacted in that regard; and

The affidavit should also set forth the experience and training of those who will execute the warrant and that an interpreter will be present at the time of execution.

The warrant itself should provide for a limited search of perhaps 7 a.m. (at the earliest) to 7 p.m. (at the latest) on a single day; for the taking of photos of the premises, not individuals. While homeowners and tenants may talk with police they should again be unambiguously advised in English and their language that they are not required to speak with inspectors or the police and that their statements may be used against them in a prosecution, eviction or other proceedings.

The Court issued the warrant in this case because, in its view, the Building Department substantially complied with the Guidelines.

This Court believes that the sole purpose of bail should be to insure the attendance of the defendant at court appearances. People ex rel. Mordkofsky v. Stancari, 93 AD2d 826, 460 NYS2d 830 (2nd Dept., 1983) ["the legitimate object of the bail system is to secure the attendance of a defendant in a criminal case"]. For guidance...community. U.S. v. Gotay, 609 F.Supp. 156, S.D.NY, 1985) ["assuring the Court of a defendant's appearance at trial is a central objective sought to be achieved by the statute"]. Like 18 U.S.C. 3142, under CPL 510 et seq., the trial court has broad judicial discretion in setting the amount of bail. People ex rel. Lobell v. McDonnell, 296 NY 109 (1947); see also U.S. v. Wright, 483 F.2d 1068 (4th Cir., 1973) [fixing of the amount of bail is peculiarly a matter of discretion with the trial court].

For guidance in this area, the Court has reviewed an analogous federal bail statute, the Bail Reform Act of 1984, 18 U.S.C. 3142(c)(B) which provides for release based upon conditions that will assure the appearance of the person required and not endanger the safety of [*4]any other person or the community. The conditions then must be the least restrictive to further these purposes.^[FN1] Some of those conditions include that the defendant should avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense. See 18 U.S.C. 3142(c)(B)(v). Accordingly, the defendant, except by her counsel, is hereby ordered and directed to have no further contact with the tenants of said premises. In addition, the statute provides in 18 U.S.C. 3142(c)(B)(xi) that a defendant, under federal law, as a further condition of release, may be required to "execute an agreement to forfeit upon failure to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required . . .". In the absence of such guiding provisions under the State of New York bail statutes, this Court adopts the procedures set forth under federal law as fair and equitable. Consistent with federal and New York State law, the Court is allowing for the release of the defendant on the basis of those conditions as hereinafter set forth. Again, the defendant shall have no further contact with the tenants in the premises except through a lawful legal process such as eviction. The defendant, as further conditions of bail, shall allow for inspection by the Building Department at reasonable times and on reasonable notice in order to insure the safety of residents and that the building is being maintained in compliance with our Local Laws. As a further condition of bail, during the pendency of this case, and except for pre-existing tenancies, the defendant is precluded from renting the subject premises to anyone.

These conditions of bail are not without precedent. The Court of Appeals for the Second Circuit has considered similar conditions of bail. U.S. v. Ferranti, 66 F.3d 540 (2nd Cir., 1995). The District Court for the Eastern District of New York, encompassing Long Island, Nassau County, and the Village of Westbury, set bail conditions of $1,000,000.00 (secured by the defendant's properties), in order not to unlawfully evict tenants, and prohibiting the defendant from contacting or intimidating witnesses. The Circuit Court reversed only because the conditions of bail were too lenient - they did not adequately protect the community. Id., 543-544.

The Court has not been informed as to the appraised value or equity, if any, in the subject premises. Therefore, without that security, the Court believes that there is a substantial risk of flight as far as this particular defendant is concerned. It is entirely possible that with financing and mortgages, as well as the depreciation caused by alleged illegal use, that the property may presently have no net equity. Furthermore, on the basis of the search warrant and its return, the Court feels that upon receipt of information from the Building Department of any existing mortgages on the property that it must notify those mortgagees of the alleged illegal use. In addition, the Court feels that fire, casualty and liability insurance carriers for the premises must be notified as to the alleged illegal usage since such usage is not an insurable risk and, in the event of fire or other injury, liability may be disclaimed. In addition, the County, Town and Village Assessors shall be notified of the nature of the alleged occupancy, the search warrant and its return. The County Assessor has previously reassessed 335 Princeton Street, Westbury for commercial usage. Prior to the change in use and reassessment, that home was assessed as a single family home. This Court offers no comment as to the legality of that assessment, only that [*5]it occurred. At the time, 335 Princeton Street, Westbury was owned by this defendant.

Regrettably, while this Court has striven to protect the rights of tenants and landlords, it cannot stand by and allow illegal use of dwellings without considering that they are allegedly being used by undocumented, illegal aliens. While this Court deeply regrets having to take this action against poor tenants, it cannot allow them to live in squalor or be victimized by unscrupulous landlords who take advantage of their status and a housing shortage. At the same time, adjoining property owners have a right to be protected from the hazards that illegal rentals create. They also have a right to the protection of their investment in the property which they own. Those investments are severally compromised by illegal rentals. See People v. Alba Garcia, 2007 NY Slip Op 51857(u). Illegal rentals can cause a beautiful, pristine community like Westbury to turn into a slum overnight. That has not happened yet and hopefully will never happen, as long as this Village is vigilant in enforcing its laws and protecting the rights of all. Therefore, this Court is compelled at this time to report the circumstances of this warrant and return as well as these charges and the defendant's prior conviction at 335 Princeton Street, Westbury to Homeland Security, both the State and Federal agencies. It is also ordering the Village Building Department to provide tenants at the premises locations of where they can secure information about legal housing.

Failed immigration policies at the state and federal levels have caused numerous problems at the local level of government where our powers of resolution are extremely limited. Yet, this Court will not be a "potted plant," twiddling its thumbs, waiting for state and federal officials to act concerning these controversial subjects. This Village Justice has been elected by the residents here to administer justice, to be fair and impartial, functioning without fear or favor. While the Federal and State Constitutions mandate the application of the Bill of Rights to this and every case as a first priority, this Court is not unmindful of the rights of all residents and how they are affected by its decisions. While this Court cannot solve the immigration problems which face this nation, it can take some small steps to ameliorate some of the fallout from the failed policies. This Court has sworn to follow the Constitution, but it must also give full consideration to the application of Local Laws. This Court is not of the view that its decisions must be so narrowly written as to be indecipherable and of no precedential effect. See, generally, Jeffrey Rosen, The Unlikely Liberal, The New York Times Magazine, September 23, 2007 (cover), pp. 50, et seq. Together with the other equal branches of government, the judiciary must further an understanding of legal issues and where appropriate, offer solutions to the vexing problems facing society. This is more than the power of judicial review, it is the power to interpret laws, to further an understanding of them, and where the Legislative and Executive Branches have omitted from laws intent or purpose or particular actions that are lawful or unlawful, the judiciary may have to fill in those gaps, if it can. While the ratio decidendi itself may have to be narrowly written, this should not curtail the Court from offering dicta that may help to explain its underlying decision or the laws themselves. Neo conservatives favoring the expansion of presidential powers believe that this is beyond the scope of the judicial function. This Court believes that such narrow mindedness is anathema to the Constitution and democracy as we know it.

The defendant is now before the Court for arraignment where not guilty pleas have been entered. She is making a bail application pursuant to Articles 510 and 520 of the Criminal [*6]Procedure Law. Bail is granted on the further condition that the defendant post as bail, a confession of judgment in the amount of forty thousand ($40,000.00) dollars, to be immediately recorded by the Village Prosecutor. In the event of a non-appearance by the defendant, the prosecutor shall be authorized to execute on the judgment together with statutory interest and costs against the defendant. As further conditions of bail, the defendant is directed to turn over her passport forthwith, to the Clerk of this Court during the pendency of these proceedings.

Article 13-A of the New York Civil Practice Law and Rules provides for the remedy of forfeiture in the case of criminal activity, as defined by the Penal Law. Since this defendant is not charged or convicted of a crime, this Court and our Village Prosecutor have no jurisdiction or power to initiate a pre or post conviction forfeiture action. See C.P.L.R. §1310(5), (6) and (11). However, this Court is referring this matter to other State and Federal agencies that may be proper "claiming authorities." C.P.L.R. §1310(11) and 18 U.S.C. §981 et seq.

This Court urges the Village to continue to pursue all legal avenues to halt the spread of illegal occupancies within its boundaries. The Village prosecutor is also authorized, as a further condition of bail, to insure that the premises are legally occupied. Alternatively, the Court is setting a cash alternative of seventeen thousand ($17,000.00) dollars ^[FN2], plus a confession of judgment in the amount of twenty-three thousand ($23,000.00) dollars, the approximate amount of the fines that may be imposed if the Court determines that the defendant is a first, second and third time offender. On a second offense the fines may rise to two thousand five hundred ($2,500.00) dollars. On a third offense, the fines may be as much as ten thousand ($10,000.00) dollars per violation. As a further condition of this alternative, the defendant is directed to turn over her passport to the Clerk of this Court during the pendency of these proceedings. In either case, the defendant is hereby directed to appear in person at all future court appearances or be subject to a revocation and forfeiture of bail.

The Court is also of the view that there are no leases in existence for the rentals in issue and in all likelihood substantial rents are being paid by tenants in cash. These monies, if documented, may also be subject to forfeiture and possibly even charges of money laundering, income tax evasion and fraud. For all of those reasons, the Court believes that for a copy of this decision, that the matter should be referred to the United States Attorney's Office in the Eastern District of New York, the Internal Revenue Service and the District Attorney of Nassau County for such action, if any, as they may deem appropriate.

The defendant shall have five days (until Wednesday, October 17, 2007 at 5:00 p.m.), from the date of this Decision and Order in which to either obtain a stay of this decision from a higher court or to comply with the conditions of bail as set forth herein. In the event that the defendant has not complied with this Decision and Order as specified, supra , then a bench warrant shall issue and the defendant will be remanded to the Nassau County Jail during the pendency of this case.

This case is specially and tentatively scheduled for October 17, 2007 at 5:00 p.m. for a compliance conference. If compliance is achieved before that time, no appearance will be [*7]required. Otherwise, the next appearance will be on November 15, 2007 at 9:30 a.m. A motion schedule has been set by the Court and a submission date of December 13, 2007 has been established.

This constitutes the decision and order of this Court.

Dated: October 11, 2007

E N T E R:

___________________________________

HON. THOMAS F. LIOTTI

VILLAGE JUSTICE