In the thirty six years that this Justice has been an attorney and the twenty two plus years that I have served as a Village Justice, high technology has brought us a new era of legal research and writing. We have gone from book briefing and carbon paper to word processors and computers. Research is done at our fingertips by access to the internet and vast, remote data banks. Instead of trips to the law library, attorneys now travel to cyberspace. While brief writing and motions from yesteryear tended to be sui genesis and therefore more sparsely composed, today's brief writing is often stored, regurgitated in boiler plate format, lacking in specificity to the facts or legal issues of the cases for which they are submitted. This blunderbuss method of legal writing, if unchecked, engulfs our courts in a morass of submissions dwarfing the concept of "less is more" to "more is less" or more is just a lot more of whatever including the kitchen sink. As will be shown hereinafter, that is the case here. As in former years the key to salient brief writing and motion practice has to do with pointed factual and legal arguments. It has nothing to do with counsel's ability to download the Encyclopedia Britannica into their papers. It is still the case that winning legal arguments usually have to do with the ingenuity deployed by [*2]counsel, not the recycling of standard fare, legal principles or cases that everyone, including this Court and the prosecutor, know to be so. While all defense counsel have to earn the legal fees that they are paid, few are paid according to the poundage of the paperwork that they leverage into the courthouse ^[FN1].

Earning a legal fee has to do with legal arguments made in good faith that may challenge the law with novel issues or in order to rebut rulings by the Court or those legal points of contention made by an adversary. While Town and Village Justice Courts are not granted the authority by law to impose sanctions and this Court is generally opposed to their imposition, the motion papers in this case are of particular concern to the court because of the fact that they generate needless work and expense for the Court and the prosecutor and further because defense counsel's law firm has been cautioned against this practice in the past. See 22 NYCRR §§130-1.1(a), 130-2.1(a); Morris, A Practice Guide to Village, Town and District Courts of New York (Reuters, Thompson-West, 1995-present) at 16:108; People v. Howlett, Decisions of Interest, NYLJ, May 30, 2003 at 1, 17 and 23; People v. Beauvil, 2008 NY Slip. Op. 5137(u), the Magistrate, March-Spring, 2004, vol. 44, no. 1 at 22 and 23 and Thomas F. Liotti and Drummond C. Smith, Sanctions and Costs: The Enemy of Advocacy, The New York State Bar Association Commercial and Federal Litigation Section Newsletter, Summer, 2011, vol. 17, no. 2 @ 1, 12, 13 and 14.

In this Court's view, there is little doubt that defense counsel's papers are in large part, if not entirely, frivolous. See Rules of the Chief Administrator §130-1.1(c)(1)(2) and (3). Part 130 supra prevents this Court from imposing costs or sanctions against defense counsel or her clients.

The papers filed in regard to this case also suggest that the defendants are absentee owners who have allegedly allowed their property to fall into a state of disrepair, thus substantially jeopardizing the value of real property in the residential community. While this Court does not pre-judge this case or any other, it is a historic fact that this Court in a litany of cases, now too numerous to mention, is vehemently opposed to slumlords, landlords or other so-called investors who exploit the poor by the illegal rentals of residential homes. The housing shortage has created a cottage industry for those unscrupulous landlords and owners who would take advantage of this situation. See, People v. Ventura (No.1), 3 Misc 3d 1107(A), 787 NYS2d 680 (NY Just. Ct. 2004); New York Law Journal, May 25, 2004 at 1, 17, 19 and 20 and People v. Ventura (#2), 6 Misc 3d 1001(A), 800 NYS2d 2004 and New York Law Journal, February 1, 2005 at 1, 17, 19 and 20.

While defense counsel may choose to market her law firm under the title of "The Coalition of Landlords, Homeowners & Merchants, Inc.", this corporate title suggests a more sinister objective to this Court, namely that it seeks to represent absentee landlords and homeowners subject to the enforcement of Local Laws.

The defendants in this case have filed an Omnibus Motion with thirteen so-called "prayers for relief", accompanied by a tome of an affirmation consisting of forty four (44) pages, one hundred thirty eight numbered paragraphs and a signature page divorced from the rest of the document, thus further revealing its pro forma, copycat status. Those documents are then [*3]accompanied by two (2) affidavits from each of the defendants, husband and wife. Each affidavit is virtually identical to the other consisting of two pages and thirteen short paragraphs, all but one paragraph consisting of a single sentence. Exhibits labeled A through F also accompany the submission together with defense counsel's affidavit of service.

The charges in this case consist of three (3) Incorporated Village of Westbury alleged building code violations involving the maintenance of property at 1344 Grand Street, in the Village of Westbury. Summons number 9907 alleges a failure to paint residential property, number 9908 alleges a failure to maintain the roof and walls of the same residence and finally number 9909 alleges a failure to maintain a safe and secure building. Each violation is punishable, upon conviction, to fines of a minimum of one hundred dollars ($100.00) to a maximum of one thousand dollars ($1,000.00) and potential jail sentences of 15 days on each. Each accusatory instrument, a/k/a Summons, is sworn to by a Building Inspector/Code Enforcement Officer. An affidavit of service of the Summons shows that service was allegedly made by "nail and mail" following five (5) attempts at personal service, all in February, 2013. While the aforesaid affidavit of service dated February 26, 2013 omits some information from its preamble and in subparagraph #6, neither of these omissions are sufficiently determinative of non-service particularly in light of the defendants timely appearance in this case with counsel. Accordingly, while a traverse hearing has not been requested, none is required under these circumstances.

For the reasons stated seriatim, the defendants' motion is denied in its entirety. While the prosecutor has in essence cross-moved stating that the defendants' motion should be denied for failure to comply with the Court's scheduling order, it is not being denied for that reason.

Applications

Dismissing the Accusatory Instrument against the defendants in the within proceeding based upon improper service and lack of personal jurisdiction.

Holding:Denied. Appearance tickets were sent to the defendants on February 26, 2013. A letter was sent by their counsel on March 19, 2013 to the Court requesting an adjournment which the Court granted. (See People's Exhibit "3"). The Court adjourned the case to April 11, 2013 at which time, at defense counsel's request, the defendants were arraigned in absentia. Defense counsel did not make a limited appearance but submitted to the jurisdiction of the Court. The Court finds that the accusatory instrument starting the case was filed prior to arraignment and that any alleged defect pertinent to the appearance ticket is waived. See CPL §150.10; also Peter Preiser, Esq., for his Practice Commentaries, McKinney's Consolidated Law of New York Book 11A, page 678 and People v. Rodriguez, 90 Misc 2d 356, 394 N.Y.S.2d 542 (1977). Defense counsel filed a Notice of Appearance on April 11, 2013.

Discovery and inspection of physical, scientific or technical evidence, as more specifically prayed for in the attached affirmation.

Holding:Denied. The Court finds that the People have more than amply responded to the defendants' demands on May 15th in providing defense counsel an opportunity to [*4]inspect the People's entire file, which defense counsel did not avail herself of, and also provided a Bill of Particulars. This Court is unaware of any other physical, scientific or technical evidence and the defendant has not described any that could otherwise be provided.

Directing the prosecution to turn over Brady and Rosario material. (See, Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 NY2d 286 (1961)).

Holding:Denied. This Court does not need to remind this prosecutor of his Brady and Rosario obligations.

Directing the prosecutor to serve a Bill of Particulars.

Holding:Denied. See #2 supra.

Directing the prosecution to deliver to the defendants' attorney, copies of any arrest warrants, search warrants and/or court orders.

Holding:Denied. None have been shown to exist. The charges are based upon an exterior inspection of the premises.

Granting a hearing pre-trial to determine the validity of any search warrants and the admissibility of any property seized.

Holding:Denied. See #5 supra.

Directing the suppression of any evidence obtained in the subject premises . . .

Holding:Denied. See #5 and #6 supra.

Dismissing the Accusatory Instrument based upon the "vagueness" of the Code in violation of the Fifth and Fourteenth Amendments.

Holding:Denied. The Court adopts the affirmation of the People at pps. 8-10 and the decision of my learned friend and colleague from the Village of Valley Stream in the case of People v. Beecher, 153 Misc 2d 247, 580 N.Y.S.2d 980 (1992).

Valley Stream Village Justice Robert Bogle held in People v. Beecher, 153 Misc 2d 247, 580 N.Y.S.2d 980, Village of Valley Stream Justice Court (1992), that it is legitimate and constitutional to have as a governmental objective the preservation of residential appearance of a community and for the maintenance of its property values. In other words, a statute, though based on what may be termed aesthetic considerations, will be constitutional if it proscribes conduct which offends sensibilities and tends to debase the community and reduce real estate values. (People v. Stover, 12 NY2d 462, 466 [1963].)' Stover, supra, was a prosecution commenced in the City of Rye City Court for violation of an ordinance involving the prohibition of clothes lines in front and side yards.

In applying the Stover decision, Justice Bogle found that the Valley Stream Village Code purpose of its ordinance (was) to foster the health, safety and welfare' and to maintain the neighborhood and property values.' The Village Code requirement of property maintenance and [*5]keeping structures painted or covered in a protective coating clearly fit into these legislative findings. Therefore, the Village ordinances are based on sound governmental objectives and pass constitutional muster.' People v. Beecher, 153 Misc 2d 247 sic at 250.

At bar, similarly, §83-1 of the Village of Westbury Code in the preamble states that it is a chapter providing for the repair or removal of any building or structure which is or threatens to be a public nuisance, dangerous to the health, morals ^[FN2], safety or general welfare of the people of the Village of Westbury, or which might tend to constitute a fire hazard; for the establishment and maintenance of proper housing standards . . . A. Within the Village of Westbury there are and there may in the future be buildings or structures which are dilapidated, unsafe, dangerous, unsanitary, a menace to health, morals, safety and general welfare of the people of the Village of Westbury and which tend to constitute a fire hazard and which are a public nuisance.' All of the foregoing consists of and are based on sound governmental objectives including the provisions which it is alleged that the Defendants violated, §83-7 C. (1), (4) and (5) which are as follows:

(1) All exterior exposed surfaces not inherently resistant to deterioration shall be repaired, coated, treated or sealed to protect them from deterioration or weathering.

(4) Exterior walls, roofs and all openings around doors, windows, chimneys and other parts of a building shall be so maintained as to keep water from entering the building and to prevent undue heat loss from occupied areas. Materials which have been damaged or show evidence of dry rot or other deterioration shall be repaired or replaced and refinished in a workmanlike manner. Exterior walls, roofs and other parts of the building shall be removed, repaired or replaced.

(5) The owner of a vacated building shall take such steps and perform such acts as may be required of him from time to time to ensure that the building and its adjoining yards remain safe and secure, and do not present a hazard to adjoining property or to the public.

This Court does not find that the Village's Local Law is vague or that it is being arbitrary and capriciously enforced. This Court specifically finds that the prohibitions in the ordinance concerning property maintenance are sufficiently clear so that a person of reasonable intelligence, apparently including these defendants, would not only understand the terms but also based upon the documentary proof including photos of instant premises showing, among other things, broken [*6]windows and other conspicuous dilapidation, realize that they are potentially in violation of it. See People's Exhibit "3". This Court does not find that there is a Fifth or Fourteenth Amendment issue presented by the defendants' application. In fact, they have failed to draw any analogy by case law analysis to the language of our Local Law and the condition of this particular property.

This Court and none other of which it is aware, lightly declare Local Laws unconstitutional. See generally, Raoul Berger, Government By Judiciary, the Transformation of the Fourteenth Amendment (Liberty Fund, 1997).

Dismissing the Accusatory Instrument based upon violations of Art. I, §12 and the Fourth Amendment.

Holding:Denied. The Court finds that there was no illegal search and seizure. The posting of a "No Trespass" sign cannot stop a Code Enforcement Officer from complying with his official duties and moreover, the course of dealing between the homeowners and the Building Inspector suggests that they invited him onto the property and asked for his assistance concerning its maintenance.

10 & 11.Dismissing the Accusatory Instrument(s) because they do not make out sufficient allegations to satisfy the elements.

Holding:Denied. The allegations are not based upon hearsay but direct observations.

Dismissing the charges based upon the manner in which the prosecution has implemented the Penal Law.

Holding:Denied. The prosecution has not alleged a violation of New York's Penal Law.

Permitting the renewal of all motions, etc.

Holding:Denied in the proper exercise of this Court's discretion. See CPL §255.20.

The defendants have a number of other items referred to in the affirmation by counsel but not contained in their Notice. For example, defense counsel mentions that the defendants may have criminal records but that this should be excluded. If pertinent, this would be in the nature of a People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d 849 (1974)application, which case the defendants have not cited. But is not pertinent because the prosecution has averred that it is unaware of any criminal records of the defendants and has no facility for obtaining them even if they existed which apparently, they do not.

Defense counsel has made a number of other specious claims including that the Village of Westbury's Local Laws are "unconstitutional" because they are "rent-seeking". Defense counsel then goes for the next four (4) pages of her affirmation (¶s 135-137) without citing to any legal or other authority on this point. Accordingly, this Court elects to not respond to this point insofar as it is completely unsupported by facts and law.

Conclusion

All pre-trial motions having been denied, the matter is hereby set down for trial on July 18, 2013 at which time defense counsel and the defendants are directed to appear. Defense counsel has filed an affirmation of engagement for June 13, 2013 and accordingly, the time between June 13, 2013 and July 18, 2013 is excludable under CPL §30.30 and chargeable to the [*7]defendants. Given the apparent condition of the property the Court is, sua sponte, marking this case peremptorily against the defendants for trial on July 18, 2013.

DATED:June 12, 2013

Westbury, New York

SO ORDERED:

______________________________

Hon. Thomas F. Liotti

Village Justice