OPINION AND ORDER

Defendant Muttontown Acres LLC is accused of violating Local Law 5 of 2006 and General Code §172-3A(1) [collectively the "Tree Ordinance"] at 225 Eastwoods Muttontown Road in the Village of Muttontown, Long Island, New York on June 23, 2011 by cutting down 3 large trees without a permit. The Tree Ordinance requires such a permit for tress which have greater than a prescribed size, measured by the circumstance and diameter of each tree.

Defendant has moved to dismiss the charge on the grounds, viz. that: [1] the accusatory instrument is allegedly "insufficient on its face", [2] the facts and evidence were allegedly "gathered during an illegal search" in violation of its constitutional rights; and [3] the "interests of justice" warrant dismissal.

Sufficiency of Accusatory Instrument

Criminal Procedure Law §100.40 requires that the Verified Information and Supporting Deposition [jointly, the "Accusatory Instrument"] state facts which, if proven, make out a prima facie case against the defendant. That, the statute requires, must be done with "non-hearsay allegations" of fact which provide "reasonable cause to believe that the defendant committed the offense charged" and "establish, if true, every element of the offense charged and the defendant's commission thereof". CPL §100.15 further provides that, to be sufficient, the Accusatory Instrument must allege "facts of an evidentiary character supporting or tending to support the charges". As the Court of Appeals explained in People v. Jones, 9 NY3d 259, 262:

" The reason for requiring an additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law' [citation omitted]. A defendant charged with an information does not have the same safeguards as a defendant charged by a complaint [id]."

Accord People v. Alejandro, 70 NY2d 133, 137. [*2]

When passing on a motion to determine if those requirements have been met, the court "is limited to reviewing the facts as they are set forth in the four corners of the accusatory document". People v. All State Properties LLC, 29 Misc 3d 201, 207; People v. Voelker, 172 Misc 2d 564. See also People v. Casey, 95 NY2d 354.

If the Accusatory Instrument does not meet the requirements of CPL §100.40, it must be dismissed. People v. Caravousanos, 2 Misc 3d 7 (App Term); People v. Varricchio, 26 Misc 3d 656, 658-59; People v. Riverdale Equities, 148 Misc 2d 818. Indeed, as explained in Jones, 9 NY3d at 262, a "failure to assert sufficient [the requisite] non-hearsay factual allegations is a jurisdictional defect", and thus fatal to the charge. Accord Alejandro, 70 NY2d at 134-35. See, e.g., People v. Castanza, 24 Misc 3d 134A, 890 NYS2d370, 2009 NY Slip Op 51416, 2009 WL 1911912 (App Term).

In the Verified Information at bar, Edward Hauser, the Village Code Enforcement Officer, states that he visited defendant's property and "observed that the defendant did permit three trees to be cut down" [Verified Information ¶3]. In his Supporting Deposition, Anthony Toscacno, the Village Arborist, states that he examined the cut trees on the same day and found them to be of the size, indeed in excess of the size, for which the Tree Ordinance provides that a permit is required. The People contend that these two instruments taken together (i.e. the "Accusatory Instrument") allege facts of an evidentiary nature creating reasonable cause to believe that defendant violated the Tree Ordinance as charged, and thus is legally sufficient to assert the charge against defendant.

Defendant contends, to the contrary, that the Accusatory Instrument fails to include prerequisites of Muttontown General Code §172-3A(1). Section §172-3A(1) provides that:

"It shall be unlawful for any person to remove, cut down, destroy or substantially alter a tree or other protected vegetation located within the Village, living and dead, in any of the following categories, unless a permit has been obtained pursuant to this chapter: . . . ."

Defendant contends that the Accusatory Instrument here fails to state that defendant . . . actually cut down the trees in question, or otherwise removed, destroyed or substantially altered the specified trees, but rather alleges only that defendant "permitted" the trees to be cut down.

Responding, the People point out that General Code §172-7(B), as amended by Local Law 5 of 2006 (the other statutory authority on which this proceeding is brought) provides:

"It is a rebuttal presumption, for the purpose of enforcing this chapter that the owner on whose land any tree has been removed, cut down, destroyed, or substantially altered without the necessary permit is the person responsible for performing or permitting the act complained of." (emphasis added)

The People say that General Code §172-3A(1) must be read in conjunction with Local Law 5 of 2006; and, when that is done, a violation of the Tree Ordinance has been sufficiently alleged.

The People are correct. The Tree Ordinance must be read in conjunction with the Local Law. Both were cited in the Accusatory Instrument; moreover, they are inter-related. Hence, both provisions must be read together in determining the full statutory content, context, and legislative intent. Levine v. Borenstein, 4 NY2d 241 ("all parts of an act are to be read together"). Accord Statutes §93 and §130 ("all sections of a law must be read together to determine its fair meaning"). See, e.g., People v. Heaney, 31 Misc 3d 1216A, 2011 NY Slip Op 50695U, 927 NYS2d 818; People v. Greenfield, 9 Misc 3d 1113A, 2005 NY Slip Op 51518U, 808 NYS2d 919.

Local Law 5 states disjunctively that a rebuttable presumption of a violation exists as to [*3]either "performing" or "permitting" the conduct prohibited. Here, as noted, the Code Enforcement Officer states, on first-hand knowledge, that, upon visiting the property he "observed" that the defendant "did permit three trees to be cut down", and that he therefore concluded that defendant had committed a "violation of Local Law 5 of 2006". That allegation of "permitting", together with the other alleged facts in the Accusatory Instrument, suffices to state a prima facie case that the defendant committed the offense charged. Exactly what defendant did and whether the People can prove a violation are matters for later proceedings, including (if needed) a trial.

The Court also rejects defendant's alternative or further argument that the Accusatory Instrument is insufficient since it fails to show, in defendant's words, "defendant's relationship to the premises". Such a relationship is not a term of the Tree Ordinance, and thus is not a requirement of the charge. People v. Bogal, 23 Misc 3d 130 (App Term), relied on by defendant for this argument, is not in point. There, the defendant was charged with failing to obtain a building permit for additional work done on a swimming pool, after expiration of previously-obtained permits. The court found the accusatory instrument there to be insufficient because it failed to allege that the violation had occurred, not because it failed to show the defendant's relationship to the premises.

Allegedly Illegal Seizure

Defendant next contends that the charge should be dismissed because the evidence upon which it is based was obtained by an "unreasonable search" of defendant's property in violation of the Fourth Amendment to the United States Constitution. The People contend that the constitutional protection he seeks to rely on does not apply here.

The Fourth Amendment assures "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures". The Fourteenth Amendment makes that provision binding on the states. In essence, those provisions of the Constitution protect citizens from "unreasonable government intrusions into their legitimate expectations of privacy". United States v. Chadwick, 433 US 1, 7. Accord United States v. Thomas, 757 F2d 1359, 1366. It has long been the law that evidence gathered in violation of the Amendment may be, and generally will be, excluded in a criminal case. Weeks v. United States, 232 US 383, 398. This is called "the Exclusionary Rule". As explained below, however, while the Exclusionary Rule may apply in a civil case, it does not necessarily apply in such a case.

Not every gathering of evidence is a "search" within the Amendment or the Exclusionary Rule. "Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment". Illinois v. Caballes, 543 US 405, 408. Accord United States v. Hayes, 551 F3d 138, 143 ("[a] Fourth Amendment search' . . . does not occur unless the search invades an object or area" which "society" believes is objectively entitled to privacy"). Thus, a threshold question here is whether the Code Enforcement Officer's conduct in observing the cutting of trees and the Tree Arborist's measuring of the trees is even subject to the Amendment or the Exclusionary Rule.

The Fourth Amendment protections sometimes apply, but do not necessarily apply, in civil cases, and, even when they do, are applied less stringently. Paramount Pictures Corp. v. Doe, 821 FSupp 82, 84 ("in the civil context, the standards of reasonableness [of a search] are less stringent than in the criminal context"). See also Jonas v. City of Atlanta, 647 F2d 580, 582-83; Honeycutt v. Aetna Ins. Co., 510 F2d 340, 348. Cases charging a defendant with a violation of a non-criminal village or town ordinance, although governed by the Criminal Procedure Law, but not including criminal penalties such as incarceration are generally civil in nature. See, e.g., People v. Kleber, 168 Misc 2d 824, 828-31, explaining when a case alleging violation of a village ordinance provision [*4]such as the Tree Ordinance is a criminal or a civil case.

Whether the Fourth Amendment protection will apply is generally determined on an ad hoc basis, based on the particularly facts, such as whether the area is part of one's "curtilage" (i.e. areas of daily use in or around one's property) and whether the claimant had both a subjective and a reasonable expectation of privacy. Esmont v. City of New York, 371 F.Supp.2d 202, 212. See also AmJur2d, Searches & Seizures §§ 5. 49, 69. But "the touchstone" is whether the landowner "had a reasonable expectation of privacy" as to the area searched. United States v. Titemore, 437 F.3d 251, 259.^[FN1]

Defendant has not cited or moved on the basis of New York law. But, since the New York Constitution provides its own protection of privacy (NY Constitution Art. I §12), the Court will examine New York law in conjunction with and relation to US law.

New York courts generally follow federal law as to the Exclusionary Rule. But; they do not always or entirely do so, sometimes broadening them and sometimes narrowing them in light of the facts of the particular case before them. For example, in People v. Scott, 79 NY2d 474, the Court of Appeals departed from federal law to recognize that a property-owner may have an expectation of privacy in land outside the curtilage where the owner has manifested an intent for privacy by "posting" signs prohibiting trespassing or "erecting fences". Cf. People v . Willette, 42 AD3d 674, 675 ("New York has interpreted NY Constitution, article I, §12 more narrowly than the Fourth Amendment" as to certain seizures).

No issue or argument of a difference between federal and New York law has been presented here; and, in any event, the possible differences do not appear to be material to this decision. Rather, New York law appears to be consistent with federal law as to the issues presented here. Like federal law, in determining the applicability of the Exclusionary Rule, New York focuses upon "whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy". People v. Dunn, 77 NY2d 19, 25, cert den, 501 US 1219.

"Entries onto private property by government officials to seek out or abate public nuisances", such as those by building inspectors and other property inspectors, fall within the purview of the Fourth Amendment and, thus, may be subject to the exclusionary rule. Esmont, 371 FSupp2d at 211. As United States Supreme Court explained in Michigan v. Tyler, 436 US 499, 504-05, the Amendment applies where "the officials may be health, fire or building inspectors" and regardless of whether "their purpose may be to locate and abate a public nuisance, or simply to perform a periodic inspection". See, e.g., Camara v. Municipal Court, 387 US 523 (invalidating a warrantless search of a private home by a municipal health inspector when the homeowner did not consent); See v. City of Seattle, 387 US 541 (same for locked commercial property not open to the public). Cf. Frank v. Maryland, 359 US 360, 367-71 (where premises are open to the public).

Consistent with these cases, New York case law has explained that, "when no exigent [*5]circumstances exist ^[FN2], a code inspector may only enter onto and search private property" with consent or a warrant. People v. Sikorsky, 195 Misc 2d 534, 536-37 (App Term). Accord Abruzzi, 52 AD2d 499, aff'd, 42 NY2d 813. See, e.g., People v Castanza, 24 Misc 3d 134(A), 2009 NY Slip Op 51416(U), where a town code enforcer's pictures taken from the road were held admissible, but photographs he took after entering the defendant's property were held inadmissible under the Exclusionary Rule.

But, the Fourth Amendment does not apply where a code inspector was observing events in an "open field" or other open area readily visible and not protected from public view. As the United States Supreme Court ruled and explained in Hester v. United States, 265 US 57, 59, "[t]he special protection accorded by the Fourth Amendment to the people in their persons, houses, and effects' is not extended to open fields"; indeed, "[t]he distinction between the latter and the house is as old as common law." The Supreme Court earlier explained the reason for this distinction in Oliver v. United States, 466 US 170, 176:

"[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. . . [A]s a practical matter, these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be."

Accord: United States v. Dunn, 480 US 294, 304; Illinois v. Andreas, 463 US 765, 771 ("the Fourth Amendment protects legitimate expectations of privacy, not simply places").

Several federal decisions in New York have applied these rules to uphold warrantless searches of property outside a private residence but belonging to its owner without the consent of the owner. Hayes, 551 F3d 138, 144 ("[t]he sanctuary of the home simply does not extend to the front yard of Hayes's property"); Titemore, 437 F3d at259 (homeowner has no reasonable expectation of privacy in a patch of front lawn visible from the road and leading up to the front porch); United States v. Reyes, 283 F3d 446, 466-67 (search in driveway even though chain was hung across it); Esmont, 371 F.Supp.2d at 212 (search of yard in front of house despite gate restricting access); United States v. Williams, 219 FSup2d 346, 360 (driveway). While defendant's property is a private club, not a private residence, that does not appear to render those cases inapposite here, Indeed, the property here, with a "yard' outside of a residence-type building, is analogous to a private residence; so that the rule and the distinction delineated in these cases is appropriately applied here ^[FN3].

Further, New York case law is similar in approach. It draws a distinction between seizures [*6]within one's home and elsewhere, and finds that there is a "heightened expectation of privacy" for a private residence which renders the exclusion rule less applicable to search of other premises. Dunn, 77 NY2d at 26; People v. Devone, 57 AD3d 1240, 1242.

In determining if the Exclusionary Rule applies in such a case, New York balances "the deterrent effect of exclusion [of the evidence] against its detrimental impact on the process of determining the truth". Mtr. Of Moro v. Mills, 70 AD3d 1269, 1270. Accord Mtr of Cunningham v. NYS Dept. of Labor, 89 AD3d 1347, 1350. In this regard, as explained in Mtr of Diane P, 110 AD2d 354, 356, app dism, 67 NY2d 918:

"In the course of this inquiry, consideration must be given to such factors as the nature of both the right sought to be protected and the State's interest in the matter, the purpose of the proceeding and the severity of the potential sanctions that could result from the proceeding, and the purpose of the illegal search and its relationship to the proceeding in which the rule is sought to be applied [citations omitted]

Accord Monteserrate v. Upper Ct. St. Book Store, 49 NY2d 306. Here, those factors favor admission of the evidence. The Tree Ordinance and the People here are attempting to preserve a rural character of this village. The People certainly have a right to do that; and the Tree Ordinance was duly adopted for that purpose by the duly-elected officials of the Village. While the sanctions for a violation involve a significant monetary fine, they do not involve harsh remedies such as forfeiture, incarceration, etc. The search here was not oppressive in nature, and caused no damage to defendant's property; nor did it invade personal conduct of the defendant or conduct for which defendant sought confidentiality. Rather according to the evidence thus far before the Court, the tree cutting occurred in plain sight in open land. Thus, a balancing of the deterrent effect sought to be achieved by the Exclusionary Rule against the interest of truth in this case favors, indeed on this record strongly favors, admission of the evidence.^[FN4]

Finally and in any event, even if the Court reached a different conclusion as to the validity of the search, that would not necessarily mean that the evidence must be excluded or otherwise warrant dismissal. Rather, even illegally seized evidence is often admissible in a civil case. As explained in Mosllem v. Berenson, 76 AD3d 345, 351:

" New York follows the common-law rule that the admissibility of evidence is not affected by the means through which it is obtained' [citations omitted]. Thus, in the absence of some constitutional, statutory, or decisional authority requiring the suppression of evidence [citation omitted], such evidence is admissible in a civil action even if obtained by wrongful means [citations omitted]."

Accord Radder v. CSX Transp. Inc., 68 AD3d 1743, 1744-45; Nutrasweet Company v. X-L Engineering Corporation, 926 FSupp 767 ("the Fourth and Fourteenth Amendments do not require in civil cases that the Exclusionary Rule be extend to situations where private parties seek to introduce obtained through unauthorized searches made by state officials"), quoting Honeycutt, 510 F2d at 348. See also United States v. Janis, 428 US 447; Jonas, 647 F2d at 582-83 ("whether the [*7]Exclusionary Rule may ever bar the introduction of evidence in a civil trial is uncertain").

Interest of Justice

Defendant contends that the charges here should be dismissed in the "interest of justice" because the property at issue is a large tract (approximately 107 acres) with "hundred if not thousands" of trees, and defendant has planted more than 125 trees on the property. That, defendant contends, outweighs the cutting of the 3 trees at issue here.

Dismissal in the interest of justice is expressly permitted under the Criminal Procedure Law and relevant case law. CPL §170.40 thus 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); People v. Kraus, 13 Misc 3d 130A, 824 NYS2d 757 (App Term), both reversing convictions pursuant to §170.40.

CPL §170.40 lists several factors which the Court "must, to the extent applicable, consider, individually and collectively," in deciding if a dismissal in the interest of justice is warranted. Those 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 also permits and invites the Court to take into account "any other relevant fact indicating that a judgment of conviction would serve no useful purpose".

Dismissal in the interest of justice is possible in a Tree Ordinance case, just like any other case. See, e.g., People v. Maholtra, 32 Misc 3d 1226(A), 2011 NY Slip Op 51432(U), 936 NYS2d 60, 2011 WL 3276703 (Tree Ordinance case dismissed when defendant had voluntary extensively rehabilitated the property, with extensive replanting and additional planting). Moreover, some of the factors would support such a dismissal. For example, although this is an ordinance case where the possible penalty for a violation does not include incarceration, the possible fines can be very serve, in the thousands of dollars. Further, the Criminal Procedure Law applies in this court. See, e.g., Kleber, 168 Misc 2d at 828-31. But, the other factors all favor continuation of the case, at least at this stage. The Tree Ordinance and vigorous enforcement of it serve an important purpose and the public interest is well-served by the Ordinance and the conduct of the Village officials does not appear to have involved any serious misconduct. Dismissal would also send an undesirable message to the community.

Finally and in any event, a dismissal in the interest of justice here is premature. This is a motion to dismiss, prior to full development of the facts. Cf. Maholtra, 32 Misc 3d 1226(A), 2011 NY Slip Op 51432(U), where dismissal occurred after a trial. Whether the §170.40 factors and other pertinent factors warrant a dismissal in the interest of justice must be developed in further proceedings, after both sides have had a full opportunity to show, with evidence, why that is so or not so. Accordingly, this branch of the motion is denied without prejudice to renewal at trial or in other proceedings after there has been a full presentation of evidence and the People and defendant can be heard as that evidence. [*8]

For the foregoing reasons, the Court denies the motion to dismiss.

So ordered. Enter.

Dated: September 20, 2012

Muttontown, NY

________________________________________

Martin I. Kaminsky

Village Justice

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