Section 172-3(A) of the Ordinances of the Village of Muttontown, New York provides that "[i]t shall be unlawful for any person to remove, cut down, destroy or substantially alter a tree . . ." of a type and size designated in the ordinance [the "Tree Ordinance"].^[FN1] Defendant, a resident of Stirrup Lane in the Village is charged with violating the Tree Ordinance, specifically §172-3(A)(1), by removing seven trees of the designated type and size at 95 Stirrup Lane [the "Property"] in the Village without a permit to do so.

Defendant seeks a determination in his favor and dismissal of the charge on several grounds. First, defendant contends that he is not the owner of the property; rather, he contends, a trust of which he is the trustee is the owner. Second, defendant contends, he did not remove or order removal of the trees, and does not know who did so. Finally, defendant seeks dismissal "in the interest of justice", contending that his conduct was consistent with the intent and spirit of the statute and that he cured any harm caused by the alleged violation. Specifically, defendant contends, he has fulfilled the purpose of the statute by beautifying the property, filling it with replacement trees, and "remediating" any harm from the removal of trees

The case was tried to the Court without a jury. This Opinion and Order constitutes the Court's findings of fact and conclusions of law, as well as the disposition of the case.

The relevant facts, established at trial, show the following:

Defendant purchased the property at 85 Stirrup Lane in Muttontown, which was contiguous to property he already owned at 95 Stirrup Lane. The Property, containing a house, pool and considerable surrounding land, had been abandoned for a lengthy time, and was in a dilapidated condition, largely overgrown and with an abandoned house and surrounding improvements, including a pool [Trial Transcript at 26-27, 36].

Defendant proceeded to improve the Property. He took down the house, filled in the pool, cleaned up the overgrowth and turned the Property into what can fairly be described as a planted [*2]mini-park [Def. Ex. B; Tr. at 36-37]. To begin that process, defendant hired a landscape architect and brought in a crew under the direction of the landscape architect [Tr. at 27-28]. Soon after he acquired the Property, defendant and the landscape architect walked through the Property and determined how it would be changed [Tr. at 28, 39-40]. The architect apparently tagged several trees to be removed; but defendant contends he was not aware of that until he received the Summons at issue here. [Id.].

Defendant admits that the trees at issue were removed; and photographs of the Property (put into evidence by both parties) show that occurred. The photographs show the cut stumps, with cutting chips still beside the stumps [Tr. at 19]. The trees at issue here formerly lined a chain link fence next to the pool, which defendant later filled in. As part of his conversion of the Property, defendant took down the fence; and, commensurate with that (as shown by the photographs) the trees formerly next to it were removed. Apparently, other trees were also removed at the same time [Tr. 20-31].

Thereafter, defendant replaced the removed trees with many (apparently 87) others, far exceeding in total size and number the trees he removed [Tr. at 30-31].

As noted above, defendant contends that he is not the owner of the property. Rather, he argues, the owner is a trust of which he is a trustee Defendant produced proof that that is the case [Def. Ex. A]. In response, the People contend that a trust has no legal status; so that, as trustee of the trust, defendant is personally tantamount to and the equivalent of its owner. The People's contention is wrong. As a legal entity, a trust has the status of a person. The person or entity serving as the trustee of the trust is merely its representative, and can only be sued or charged in that representative capacity. Doing so does not make that person or entity liable in his or its individual capacity for the conduct of the trust. 106 NY Jur2d: Trusts §6, cited by the People, is inapposite. It deals with what a trustee is (stating that a trustee is "a person who holds property in trust"), not the legal capacity (versus individual capacity) of such of a person. By contract, Estates, Powers & Trust Law §11-4.1 expressly provides that "Actions or proceedings brought by or against a personal representative must be brought by or against him in his representative capacity"; and the statute is enforced as written. Commercial Trading Co. v. Tucker, 80 AD2d 779.

In any event, the People contend that the Ordinance covers the trust because §172-6(C) of the Ordinance says that "any person committing an offense against any provision of this chapter" shall be subject to punishment as provided in that section. However, that simply means that anyone who violates §172 is subject to the penalties provided in §172-6(C). To be a violator, a person must be the one who "remove[d], cut down, destroy[ed] or substantially alter[ed] a tree" of designated type and size. §172-3(A). Since defendant is charged in his individual capacity, the People must prove that defendant himself did one of those things.

At the same time, defendant's contention that he personally did not remove the trees is not a defense if there was a violation of the statute. Persons acting as agents of defendant in violating the Ordinance did so on his behalf; and the intent of the Ordinance is to reach all such persons. Defendant's testimony that he was not aware of the violation [Tr. 28] and that he only became aware of the removal later [Tr. 37] are rejected. Defendant admittedly walked the property with the landscaper to discuss what changes would be made [Tr. 28]. The Court finds that the only credible and logical conclusion from his admission in this regard is that defendant was aware that the trees in question were going to be removed as part of the landscape plan.

Defendant's contention that the Court should dismiss the charge in the interest of justice raises a more substantial and significant question.

[*3]Criminal Procedure Law §170.40 provides, in pertinent part, that:

"An information . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law, . . . dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction . . . would constitute . . . an injustice . . . ."

See, e.g., People v. Donaruma, 26 Misc 3d 143A, 907 NYS2d 439 (App Term 2nd Dept); People v. Kraus, 13 Misc 3d 130A, 824 NYS2d 757 (App Term 2nd Dept), both reversing convictions pursuant to §170.40.

CPL §170.40 lists several factors that the Court "must, to the extent applicable, consider, individually and collectively," in deciding if a dismissal in the interest of justice is warranted. The factors include: "the seriousness and circumstances of the offense"; "the extent of harm caused"; "the evidence of guilt", whether the investigation and prosecution involved "any exceptionally serous misconduct" on the part of the Village officials; "the purpose and effect" of the possible sentence for a violation; the potential effect of a dismissal "on the safety and welfare of the community"; "the impact of a dismissal" upon public confidence in the justice system; and "the attitude" of the parties involved. The statute makes clear, however, that the Court may take into account "any other relevant fact indicating that a judgment of conviction would serve no useful purpose".

In the instant case, the Court is convinced that a judgment against the defendant would not serve a useful purpose, and that the interest of justice will best be served by a dismissal of the charge against defendant. The Court considers the Village Ordinance and vigorous enforcement of it to serve an important purpose; and there has been no misconduct by the Village officials in seeking to enforce it. But, this situation does not concern the safety of residents; and a dismissal will not harm anyone else or even the Village. To the contrary, defendant's voluntary improvement of the Property has already shown respect for and an effort to comply with the intent of the Village Ordinance, by substantially increasing the number of trees there and significantly beautifying the Property. There is no private victim here; and, if anything, a dismissal should enhance rather than injure public confidence in the judicial system by showing that statutes and ordinances will not be blindly enforced without consideration of the nature of the conduct of the accused and the public purposes to be served by the statute or ordinance.

Normally these are considerations for the People as prosecutor to take into account and weight before bringing an action or prosecution. But the prosecutor's role is different from that of the Court; and while the factors each is to consider may, to some extent, overlap, they are different. In dismissing the charge here, the Court does not say or intend to say, that the People acted improperly in any way in this matter. In the last analysis, it is for the Court to decide how justice will best be served That is the reason why there is a Criminal Procedure Law §170.40. Here, the Court is convinced that invocation and application of §170.40 is called for and instructs as to the proper result.

Accordingly, the Court dismisses the charge against defendant in the interest of justice.So Ordered. Enter.

Dated: July 29, 2011

Muttontown, NY [*4]

________________________________________

Martin I. Kaminsky

Village Justice

GC 521,195,747v1 7, 29,210

GC 521,195,747v1 7, 29,210