Procedural History

The Defendant, Maria Castaneda, is charged with the following violations of the Penal Law, Village of Brockport Zoning Code, Village of Brockport Minimum Housing and Building Code and the New York State Property Maintenance Code, allegedly occurring between August of 2010 and May of 2011:

a.Falsifying Business Records in the Second Degree [2 counts] in violation of §175.05[3] of the Penal Law. [hereafter referred to as "Penal Law violation"]

b.Official Misconduct [14counts] in violation of §195.00[2] of the Penal Law. [hereafter referred to as "Penal Law violation"]

c.Brockport Zoning Ordinance, Chapter 58, Article III, §58-8 A [2] [2 counts]. [hereafter referred to as a "Code violation"]

d.Brockport Zoning Ordinance, Chapter 58, Article IV, §58-24 B [2 counts]. [hereafter referred to as a "Code violation"]

e.Brockport Minimum Housing and Buildings Code, Chapter36, Article I, §36-4A [2 counts]. [hereafter referred to as a "Code violation"]

f.Brockport Minimum Housing and Buildings Code, Chapter 36, Article I, §36-10A [1] [2 counts]. [hereafter referred to as a "Code violation"]

g.New York State Property Maintenance Code, Chapter 1, §102.3 [2 counts]. [hereafter referred to as a "Code violation"]

The various accusatory instruments were originally filed on March 9th, 2012 and March 26, 2012, with the Justice Court of the Town of Sweden, which encompasses the Village of Brockport, where [*2]the offenses allegedly occurred. The Defendant was at the time of the alleged offenses and is presently the Mayor of the Village of Brockport. She, also in the past, has served as a Trustee of the Village. [hereafter referred to as the "Board" or "Trustees"] In light of the Defendant's position as Mayor, the Justices of the Sweden Town Court recused themselves from presiding over the case. As a result, and by order of the Monroe County Court, the case was assigned to the Ogden Town Court.

In support of the charges the People allege that, during the relevant time frame, the Defendant resided in a single family dwelling located on Main Street in the Village of Brockport. It is further claimed that at some point in time the Defendant rented a separate unit of her dwelling as a residential rental property to two unrelated individuals commencing in August of 2010 and ending in May of 2011. The People claim that the Defendant did so without complying with the various Code provisions delineated above.

The substance of the Code violations are that she failed to register her property as containing a rental unit, failed to take the steps necessary to secure a residential rental inspection, failed to apply for a permit allowing the rental of the apartment and did not obtain a certificate of occupancy. These accusatory instruments charging the various Code violations were signed by the Village Code Enforcement Officer, Scott Zarnstorff, [hereafter the CEO], as the complainant.

In connection with the charge of Falsifying Business Records in the Second Degree [2 counts] it is alleged that the Defendant committed this crime, defined under the Penal Law, in that she "knowingly omitted to make a true entry in the business records of the Village of Brockport and did so with the intent to defraud." In support of this charge the factual portion of this accusatory instrument states that the Defendant failed to file with the Village a residential rental registration statement [representing count 1] and she also failed to file a certificate of occupancy application [representing count 2] as required by the Code. This accusatory instrument was signed by a high ranking Officer of the Village of Brockport Police Department. [hereinafter BPD]

With reference to the 14 counts of Official Misconduct [I have been advised by the Prosecutor that one count of Official Misconduct is charged for each of the 14 months during which the property was rented in violation of the Code requirements, to wit: August, 2010 through May, 2011] it is alleged that the Defendant committed these 14 Penal Law crimes in that she failed to perform a duty imposed on her by statute by reason of her position as Mayor of the Village of Brockport, New York. The Village Law of the State of New York requires a Village Mayor "to provide for the enforcement of all laws, local laws, rules and regulations and to cause all violations thereof to be prosecuted." [§4-400-b of the Village Law of the State of New York] The factual portion of this accusatory instrument alleges that the Defendant committed Official Misconduct by failing to comply with the various Code requirements in connection with her residential rental property, and by failing thereafter to enforce and/or prosecute these Code requirements in her official capacity as Mayor as required by §4-400-b of the Village Law of the State of New York. The Chief of the BPD signed as complainant. [hereafter the Chief]

Filed with and in support of the various accusatory instruments are the depositions of the CEO and the two tenants who allegedly occupied the unauthorized residential apartment during the time [*3]period in question. The deposition of the CEO stated, in substance, that the Defendant did not file with the Village, as required, a Residential Rental Registration Statement and, did not at any time request, complete, or submit a Residential Rental Certificate of Occupancy Application. The depositions of the two tenants stated in substance that at various points during the time period in question they rented, either individually or as roommates, an apartment located in the Defendant's home on Main Street in Brockport. In addition they averred that the Defendant advised them to be discreet about the fact that they were tenants at that location.

The Defendant first appeared in the Ogden Town Court in May of 2012. Since that time extensive motion practice has been engaged in by both the People and the Defendant.

The Defendant raises various grounds in support of her motion to dismiss the accusatory instruments. She challenges the sufficiency of the accusatory instruments, raises claims of prosecutorial misconduct and of selective prosecution, and, also seeks dismissal of the charges in the interest of justice. At oral argument the Court denied Defendant's request to dismiss the charges on her claim of selective prosecution and prosecutorial misconduct.

This decision addresses the Defendant's request to dismiss the charges on her claim of insufficiency of the accusatory instruments and in the interest of justice. A hearing was ordered in connection with the motion to dismiss in the interest of justice pursuant to People v. Clayton [41 AD2d 204] The Clayton Hearing was conducted on April 26th, 2013. The Defendant called two witnesses to wit: Scott Zarnstroff, the CEO of the Village of Brockport and Daniel Varrenti, the Chief of Police of the Village of Brockport. The People did not present any witnesses. The Defendant and the People requested the opportunity to submit written memoranda which have been submitted to the Court.

Section 100.15 of the Criminal Procedure Law of the State of New York [hereinafter CPL] requires, among other things, that a valid information contain a factual statement alleging facts of an evidentiary nature supporting or tending to support each element of the offense charged. CPL §100.40[1] further refines the requirements for valid information, in part, as follows:

a.The allegations contained in the factual part of the information and/or any supporting depositions provide reasonable cause to believe the Defendant committed the offense charged, and

b.The information and/or any accompanying supporting depositions must contain non-hearsay allegations which establish, if true, every element of the offense charged and the Defendant's commission of the charged offense.

An information which does not fulfill either of these two requirements is defective and on motion must be dismissed. [People v. Dumas, 68 NY2d 729; People v. Casey, 95 NY2d 354; People v. Alejandro, 70 NY2d 133; County of Riverside v. McLauglin, 500 US 44] [*4]

Official Misconduct

The charge of Official Misconduct must be dismissed because it fails to set forth factual allegations which constitute, even if true, the crime charged. The factual allegations set forth in the accusatory instrument and the accompanying supporting depositions are devoid of any factual allegations establishing a nexus between the alleged misconduct of the Defendant and her position as Mayor of the Village of Brockport. The very terms of §190.00 make clear that its purpose is to prevent the misuse and abuse of power by a public official, acting in her public and official capacity, possessed by virtue of law and made possible only because the wrongdoer is clothed with the authority of law.

The alleged misconduct of the Defendant was not made possible or in any way furthered by her public position, under color of law, or clothed with the authority of law. There are absolutely no factual allegations that the Code violations were in any way accomplished, committed, furthered, or covered up because of or by reason of the Defendant's position as Mayor. There is no allegation of fact that the Defendant relied on or used her public position to advance her alleged misdeed. There is no allegation that she sought the aid of the CEO or other public official to advance or cover up the alleged wrong.

All of the allegations suggest that any and all negotiations and conduct resulting in the rental and subsequent contact with the tenants occurred at or in the immediate vicinity of the Defendant's home. There is no allegation that any of the alleged wrong doing occurred at the Village offices or on Village property. The wrong, if one occurred, was committed by the Defendant as a private citizen. Her position as Mayor played absolutely no role in the alleged misconduct. The allegations involve acts of personal wrongdoing that are unrelated to her duties as a public official.

The Defendant is charged with Official Mis-conduct under §190.00[2] of the Penal Law alleging that with intent to obtain a benefit she knowingly refrained from performing a duty imposed upon her by law. The rather innovative theory and the logic underlying this charge and its elements can be summarized as follows:

a.As the Mayor of the Village of Brockport the defendant has the statutory duty under Village Law §4-400[b] to enforce all laws, rules, and regulations and to cause all violations of the same to be prosecuted, and

b.The Mayor knowingly failed to perform this official duty, imposed by the Village Law §4-400-b, by ignoring the requirements of the Code, and

c.The Mayor benefitted from her misconduct by accepting 14 months of rent from the two tenants who rented the unauthorized apartment in her home.

Under this theory of prosecution it is irrelevant to the commission of the offense whether the Mayor acted as a private citizen or in her official capacity. The Prosecutor argues that under the above Village Law a Village Mayor, in essence, on official duty twenty four hours a day. Interestingly neither Counsel has been able to find a similar burden being placed on other municipal [*5]executives, such as a Mayor of a city or a supervisor of a Town. If the Prosecutor's theory is correct than a Village Mayor would be subject to prosecution for Official Misconduct for any offense, no matter how minor, committed even in her private capacity.

Neither Counsel nor I have found a case to support the proposition that a wrong committed by a public official, totally unconnected and unrelated to the official's public duty and oath of office, constitutes the crime of Official Misconduct. Every case I have reviewed, which sustained a charge of Official Misconduct, involved factual allegations where the accused, acting under the authority of his official position, committed the wrong in question. [see, for instance People v. Feerick, 93 NY2d 433, Police Officers under authority of their badge unlawfully and forcibly enter an apartment without a warrant and then abuse the occupants; People v. Garson, 6 NY3d 604, a Judge accepted gratuities from an attorney in exchange for preferential treatment of the attorney's client in a case pending before the Judge; People v. Jackson, 35 Misc 3d 179, an EMT employed in that capacity with the local fire department refrained from performing her duty, inherent in her position, to assist a citizen who was having trouble breathing]. Each and every case reviewed supports the conclusion that the offense of Official Misconduct requires that the public servant commit an act that "relates to the public servant's office and must constitute an unauthorized exercise of that public servant's official functions ." [McKinney's Consolidate Laws. Penal Law §190.00, Commentary, Judge Donnino] And each and every case supports, without exception, that the act or omission alleged occurred while the accused was acting in her official, rather than private capacity. [People v. Esposito, 144 Misc 2d 919, affd. 160 AD2d 378] This requirement is simply missing here.

Other cases lend further support to the conclusion that the charge of Official Misconduct must be involve wrongful conduct directly related to the officials public responsibilities. Thus a corrections officer who accepts payment to "fix" a traffic ticket did not commit the crime of Official Misconduct because the wrong was unrelated to the scope of his real or apparent authority. [People v. Rossi, 69 AD2d 779, affd 50 NY2d 813]

The facts set forth in Butler v. The Sheriff of Palm Beach County and Dortehea Collier [685 F3d 1261, 11th Cir.] is more akin to the circumstances alleged against the Defendant here. In Butler the Plaintiff was having a romantic interlude with Deputy Collier's young daughter in a bedroom located in the Collier residence. Upon realizing that Deputy Collier had unexpectedly returned home from her job as a corrections officer with the Palm Beach Sherriff's Dept., the naked Butler hid in the daughter's bedroom closet. Deputy Collier, armed and in full uniform, discovered the naked Butler, in the closet. She proceeded to strike him one time, handcuff him and hold him at gunpoint, still naked and on his knees, for an extended period of time. During the entire time she verbally abused and threatened to kill and/ or arrest the naked Butler. Subsequently, after recovering his dignity and his clothing, Butler brought suit against Deputy Collier and her employer, the Sheriff of Palm Beach. He argued that the Sheriff was responsible for the wrongs of Deputy Collier because she acted in her official capacity, under color of law, as a Deputy Sheriff. The Circuit Court sustained the lower Courts dismissal of Butler's complaint against the Sheriff, holding that the conduct of Deputy Collier was not in any way related to her position as a Deputy Sheriff or her official duties.

In People v. Thompson, [58 Misc 2d 511] the Defendant was charged with Official Misconduct in his capacity as Deputy Chief of Police of the Village of Balston Spa. The allegations were that [*6]the Defendant placed a bet, off track, on his favorite horse, with a local bookmaker. The bookmaker, by taking the Chief's bet was engaged in criminal conduct, to wit" Promoting Gambling. The Chief was charged with Official Misconduct in that he failed to perform a duty imposed on him by law or clearly inherent in the nature of his office. The duty in question was his obligation to arrest of the bookmaker for engaging in illegal gambling activities. The Court in Thompson dismissed the charge, holding that the proof was insufficient to establish the Chief's conduct resulted in a benefit being conferred upon him. The language of the opinion also suggests that not every act of nonfeasance or malfeasance by a person who holds public office constitutes Official Misconduct. It further establishes that a successful bet and the resultant monetary award does not satisfy the benefit element of the crime of Official Misconduct.

The crime of Official Misconduct requires a culpable motive which is directly related with the duty the public servant refrained from performing. And the culpable motive must be venal in nature. [People v. Thompson, 58 Misc 2d 511] Venal is defined as subject to bribery and/or corruptible. The conduct alleged here in connection with the Code violations does not reach this level.

Further, if the Prosecutorial rational is correct society would be hard pressed to find a Mayor of a Village who has not been rendered a serial violator of the Official Misconduct law. And under this view I wonder whether any public official, charged with upholding the law under their Oath of Office, whether it be a Mayor, Supervisor, Board member Police Officer, or Town Court Justice, would be exempt from being so charged for relatively minor offenses such as speeding, failure to signal a turn, failure to secure a license for the family pet, or a permit for adding a shed or deck to ones property.

For the reasons set forth above the charge of Official Misconduct is dismissed on the ground that the factual allegations set forth in the accusatory instrument, even if true, are insufficient to support the charge. The Mayor's alleged conduct was unrelated to her public duties. The crime of Official Misconduct requires as an element that the wrongdoing be related to the offender's public function. And I decline to accept the proposition that §4-400-b of the Village Law requires otherwise.

Justice is at times larger than the overly strict application of the cold words of the Penal Law. [People v. Thompson, 58 Misc 2d 511; People v. Davis, 55 Misc 2d 656] The accusatory instrument therefore fails to establish reason to believe that the Defendant committed Official Misconduct, as required by CPL §100.40[1].

In addition I find that the accusatory instrument, charging Official Misconduct, and accompanying supporting depositions fail to set forth non-hearsay factual allegations supporting the element that the conduct was committed with intent to obtain or deprive another of a benefit.

The Prosecutor argues the supporting depositions of the tenants provide a factual basis in support of the benefit requirement. He argues that Defendant by failing to obey the Codes obtained the benefit of being paid rent for the unsanctioned apartment.

On closer scrutiny this argument must fail. There is absolutely nothing contained in the depositions which support a conclusion that the tenants did not receive fair value for their rent. The [*7]rent was not a benefit obtained by the Defendant as a result of circumventing the Code requirements. There are no factual allegations that, the Defendant, would have been denied a Certificate of Occupancy if she followed proper procedures or that the property would not been approved because of a failure to meet Code requirements.

In fact at the Clayton Hearing the CEO testified that, in the past, when he discovered Code violations prior to the end of the tenancy, and absent a finding of a condition which endangered the welfare of the tenant, he has allowed the tenancy to continue, while the property owner made a good faith effort to comply with the Code requirements. And he testified that in the past he has allowed residential rentals to go forward prior to the meeting of the various Code requirements, including the obtaining of a Certificate of Occupancy. There is nothing contained in the allegations that support a conclusion that compliance with Code would have prevented the rental. Thus the papers filed with the Court do not contain any non-hearsay allegations which support the conclusion that the direct benefit of the Defendant's alleged mis-conduct was the rental proceeds.

The DA also asserts that the Defendant's conduct denied the tenants of a benefit, to wit: an apartment that had been deemed to comply with the various Code requirements. There are no factual allegations set forth in the depositions to support this conclusion. There is no claim that the cost of the rental was unfair. While the depositions allege problems with the heat there is no allegation that this issue was of such magnitude that the tenancy would have been terminated, if the Defendant complied with the Code requirements or would have otherwise resulted in a denial of the Certificate of Occupancy. And apparently the heat situation was not of such a nature as to prevent one or both of these tenants from continuing their occupancy for some 14 months. Whether the heating situation in a particular dwelling is adequate or not is often a very subjective question. There are no specific allegations in the accusatory papers which set forth factual allegations to support a conclusion that the Code requirements were not met in connection with the provision of heat in this apartment.

Therefore the charge of Official Misconduct must, also, be dismissed because of its failure to contain non-hearsay allegations of fact supporting the element that the Defendant failed to perform her official duty with the intent to obtain a benefit or deny her tenants of a benefit.

Falsifying Business Records

The Defendant is, also, charged with two counts of Falsifying Business Records in the Second Degree, a Class A misdemeanor [Penal Law §175.05[3]] The elements of this charge are as follows:

a.The Defendant omitted to make a true entry in the business records of an enterprise in violation of a duty to do so which she knows to be imposed on her by law or by nature of her position and

b.She did so with the intent to defraud.

A business record is defined as any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity. [Penal Law §175.00[2]] [*8]

I find that the accusatory instrument and supporting depositions fail to set forth sufficient allegations of a non-hearsay nature to support the essential element of intent to defraud. [People v. Hankin, 175 Misc 2d 83] In response to the defendant's motion to dismiss on this point the Prosecutor posits several theories and possibilities in an effort to cure this defect in the accusatory instrument. Unfortunately none of these theories or possibilities are set forth in the accusatory instrument or accompanying supporting depositions.

As set forth above there is no allegation that the tenants did not receive what they bargained for, to wit: a place to live. There are no sworn allegations of fact that the apartment was uninhabitable. While one of the tenant's depositions complains about a lack of heat there is nothing contained in the sworn allegations of fact that establishes that this situation was of such a nature as to create a nexus between the alleged failure to meet the requirements of the Code and intent to defraud the tenants by not providing adequate heat. And there are no factual non-hearsay allegations of fact in the accusatory instrument or supporting depositions which set forth how the Defendant's conduct may have constituted a fraud affecting the Village.

Therefore the charge of Falsifying Business Records is dismissed.

Code Violations

I have considered the various arguments of the Defendant challenging the constitutionality of several of the Code violations and the sufficiency of the factual allegations contained in the complaints and supporting depositions. I find all of these arguments to be without merit and therefore decline to dismiss any of the various alleged Code violations.

The Defendant also argues that it is inappropriate to charge two counts in each of the four alleged Code violations as multiplicitous and/or duplicitous.

The Prosecutor raises a thoughtful argument, in response, that the purpose of the Code provisions is to protect the individual who rents the unit in question. Since there are two tenants who allegedly rented the apartment in question the Prosecutor argues that it is perfectly appropriate to charge two counts, one for each of the two tenants, for each Code violation alleged.

The accusatory papers and testimony at the Clayton Hearing make clear that the allegations are that the Defendant failed to comply with the Code requirements in connection with the rental of a single apartment to two tenants within her residence over a period of approximately 14 months.

The Code violations alleged relate to a residential rental property, in this case, a single apartment allegedly located within the Defendant's home. Under these circumstances the Code violations occur at the point the landlord rents the property to one or more tenants without meeting the various Code requirements. I cannot agree that the number of tenants is determinative of the number of counts to be charged. Therefore, I agree under the circumstances of this case that the charging of two counts per Code violation, on the theory that the factual allegations support a charge of one count per tenant, is unsupported. [*9]

However I do not agree with the Defendant that this error requires a dismissal of the Code violations. The factual parts of each of the Code violations clearly set forth the factual basis underlying the charges in question.

As an appropriate remedy to address the Defendant's concerns I direct that the accusatory part of the alleged Code violations be modified to strike the following language contained therein: [2 Counts]. As modified the Code violations, at this time, will be read to charge one count for each of the alleged Code Violations.

Further I am confident, with the guidance of able Counsel, that an appropriate charge can be fashioned to address any other concerns of the parties. In this way I am confident that the Defendant's right to Due Process and right to be free from Double Jeopardy will be protected.

I would note that my ruling in this regard does not in any way change or modify the factual allegations set forth in the accusatory instrument.

Dismissal in the Interest of Justice

In response to the Defendant's motion to dismiss the Penal Law and Code offenses in the interest of justice pursuant to the authority of CPL §170.40, a Clayton Hearing was held on April 26th, 2013. The Defendant called only two witnesses, the Chief of Police for the Village of Brockport and the CEO Zarnstroff. The Prosecution did not present any witnesses. I find the testimony of both witnesses credible and the testimony of the CEO, especially informative and enlightening.

I find the following facts and inferences were established at this hearing. In addition I find relevant to this aspect of the Defendant's motion many of the various exhibits attached to the Defendant's papers in the form of press releases, published reports in various media, Court decisions, written statements by the Chief and the Mayor, and the like.

The CEO provided insight into the general procedures he follows when he becomes aware of a violation of a Code provision. In this regard the CEO testified that when he becomes aware of a Code violation, whether it be a failure to register a residential apartment, apply for a Certificate of Occupancy, a dangerous condition threatening the safety of a tenant, failure to cut the grass, or a couch on a porch; the Village Code provides him with a number of enforcement options, as to how to proceed, in an effort to correct the violation. These options include an informal notice of violation, where he and the homeowner attempt to resolve the problem informally. A second enforcement option is to issue a formal Notice of Violation. This is a written notice served on the homeowner. This notice defines the violation, the Code section being violated and the necessary corrective action the landlord must take to correct the violation. It also provides a time frame within which the violation must be corrected, and a warning that if the correction does not occur further action will be taken. The CEO testified that if the home owner failed to heed this first formal Notice of Violation he would generally issue a second Notice and make effort to have personal contact with the violator in an attempt to work the matter out without further action. And if this second warning was ignored then he would move on to the third and most severe enforcement method. In this regard he would issue an appearance ticket directing the violator to appear before the Town Court. This [*10]third enforce-ment method is the only one of the above three options which can result in actual penalties being assessed against the violator. The penalties set forth in the Code range from hefty civil fines to criminal sanctions, which include the possibility of more fines, jail and/or a criminal record.

In addition, in an appropriate circumstances, the CEO can seek injunctive relief through Court application. He also testified that where a housing unit presented a danger to the physical wellbeing of a tenant he has the authority to summarily order the tenant to vacate the premises by "red tagging" the property. Thereafter the tenant would not be allowed to return to the property until the dangerous condition was corrected and the correction was verified through his inspection of the premises.

The CEO testified that there are several factors that he considers in determining which enforcement method to utilize in the first instance. These factors included the nature and seriousness of the violation and whether the violation was ongoing or had terminated at the point of discovery. Of course the Code violations alleged in this case had ended with the tenancy in May of 2011, several months prior to the discovery of the violations [approximately December of 2011] and the filing of the complaints. [March of 2012].

He testified that he has been involved in several unrelated cases where home owners were in violation of the registration, Certificate of Occupancy, and other Code requirements while renting a residential apartment. He has indicated that upon discovery of the violation he has, in the past on occasion, allowed the rental to continue while the violator acted in good faith to correct the violations. He testified, as indicated above, that the only time he would terminate an illegal rental actually in progress would be where he discovered a serious deficiency in the rental property that threatened the health and safety of the tenant, or where the violator did not act in good faith to correct the violation.

He further testified if the violator corrected any issues, generally he would not bring the matter to Court. Thus a repentant violator, who acted in good faith to correct the deficiency, would not in any way be sanctioned for the violation. The question of which enforcement tool he would implement to correct a violation was totally within his discretion. Thus he could ignore a violation, he could seek to resolve the matter informally, issue a Notice of Violation, and/or he could issue an appearance ticket, thereby invoking the power of the Court. Thus whether a particular violation would be ignored, corrected without penalty, or brought to Court, thereby subjecting the violator to hefty civil and/or criminal sanctions, including incarceration, is totally within the discretion of the CEO. And there are no guidelines to give the CEO direction as to which sanction he should invoke under certain circumstances.

He also testified his direct supervisor was the Mayor and that he answered to her in connection with the performance of his duties. And of course the Mayor is the subject of these alleged violations.

I turn now to the testimony of the CEO and the Chief that relates to this prosecution. Sometime, approximately in December of 2012, the Chief received a citizen's complaint that the Mayor had in [*11]the past rented an apartment in her home to unrelated persons, in violation of the applicable Codes. As a result the Chief personally conducted an investigation that included the obtaining of supporting depositions from the alleged tenants, confirming the complaint. Upon receiving the tenants' depositions and perhaps conducting other investigation into the allegations the Chief provided his findings to the CEO, at a meeting at the Police Department. Apparently the CEO first became aware of the investigation when they met, presumably at the request of the Chief. At that meeting he and the Chief discussed what course of action should be taken in connection with the alleged Code violations by the Mayor. They agreed that an appearance ticket should be issued to the Mayor for the various Code violations set forth above and now pending before this Court.

On March 9, 2012, the same date the appearance tickets were issued, a high ranking Officer of the Village Police Department applied for and secured a search warrant signed by a Monroe County Court Judge authorizing the search of the Defendant's home and purse for the following property: any and all bank statements, lease or rental agreements, check books and related documents, cancelled checks and money orders, the identity of past or current residents, computers, hard drives, deleted files, disc, thumb drives, or any other storage devices, and any other indicia of rental activity including utility bills, insurance policies etc. According to the pleadings the warrant was executed by six Village Police Officers, two Monroe County Sherrif Deputies, and the CEO. The hard drive of the Defendant's computer was later examined by a forensic computer expert pursuant to the authority of a second search warrant obtained by the BPD. In addition the Chief sought the help of the IRS to review some of the seized records in order to determine whether the Defendant had engaged in illegal structuring, a Federal offense. Nothing of value, for prosecution purposes was developed from the materials and information obtained through these search warrants.

Relevant to this aspect of the motion is the nature and basis of the relationship between the Mayor and the Chief, prior to the lodging of these charges.

On this question I rely on the Chief's testimony at the Clayton Hearing and the various exhibits, referred to above and attached to the Defendant's pleadings. In this regard the relationship between the Mayor and the Chief has been, over the years, and prior to these charges being lodged, contentious at the best and downright hostile at the worst. And, whether true or not, the local press and other media has over the years, published articles portraying an often tumultuous political relationship between the Chief and the Mayor, and the fact that there are opposing factions within the Village which lend support to either the Mayor or the Police Chief. This split exists and is evident in the Village Board and the citizenry of the Village itself.

The Defendant's pleadings describe one of these factions as the "Pro-Brockport" group. Her papers allege that generally they support strict Code enforcement, the continuation of the Village and the Police Department as viable entities. It seems a safe assumption that the Chief agrees with these principles. A second group is described as the "Pro-Dissolution" group. This group generally is viewed as supporting dissolution of the Village, the Police Dept, and looser Code enforcement. The Mayor is allied with this second group.

The apparent basis for the less than perfect relationship between the Mayor, the Chief, and one or more factions of the Village are several fold. The nature of the Village population has contributed [*12]to the ill feelings. In this regard Brockport is a small Village with a permanent population of just over 8.000 citizens. It is also a College town, being the seat of SUNY Brockport. As a result the temporary population soars during the school year. Many of these students live off campus in private rental housing.

As a result those citizens who reside in a single family homes support strong Code regulations and enforcement in order to ensure the upkeep of neighboring rental properties and their property values. On the other hand there is a group of landlords who view, at least some of the Code provisions as an infringement upon their statutory and Constitutional property rights.

In 2008 the Village Board adopted a Village Code which significantly added to the restrictions and requirements for approved rental properties in the Village. The Mayor, who at the time was a Village Trustee, was a vocal opponent to the adoption of the Village Code in 2008, which included the provisions which she is presently charged with violating.

The Mayor during the time frame of the alleged violations was and apparently still is, romantically involved with Norman Giancussio, a landlord, who was the Treasurer of a local group of landlords [The Brockport Sweden Property Owners Association, an unincorporated association of landlords who own rental properties within the Village]. Mr. Giancursio and this group vigorously opposed these various Code restrictions placed on their rental properties, as an unconstitutional infringement on their property rights. Attached to the Defendant's motion papers is a court decision where Mr. Giancusio's group un-successfully challenged the Village in connection with the enforcement of one such Code provision.

Recently, but prior to the lodging of these charges, several Board members sought by referendum to remove the responsibility for supervision of the CEO from the Mayor and place this power under the supervision of the Chief. The Chief, among others, believed this transfer of authority would provide for more effective and efficient enforcement of the Code. At the Clayton Hearing, and under questioning by the Defendant's attorney, the Chief could not recall whether he voiced supported for this resolution at a Village Board meeting. A report, provided to the Trustees by the Chief, and an exhibit to the Defendant's motion papers, makes clear he stated that he believed the transfer of supervision of the CEO to the BPD would have a beneficial effect on Code enforcement in the Village.

Prior to the referendum, and presumably in anticipation of it, by majority vote of the Trustees, over the Mayor's objection, the office of the CEO was relocated from the Village Offices, which also contained the Mayor's Office, to another building which housed the Police Department. After the move the BPD became much more involved and proactive in Code enforcement. According a written memo authored by the Chief and attached as an exhibit to the Defendant's papers, the BPD's increased involve-ment in Code enforcement has reduced costs to the Village and has resulted in an increase in addressing various Code violations.

The Mayor and her allies vigorously campaigned against the passage of this referendum. Prior to the vote the Mayor released a memo to the Brockport Community, harshly critical of the supporters of this resolution, including several Trustees and the Chief. She accused the Chief and [*13]the Trustees of wanting to turn the BPD into an army of tax collectors and of "finding creative schemes to shake down property owners." She labeled it a "power grab" by the Chief and accused him of "kingdom building", and attempting to assume the role of "Big Brother." She labeled the referendum an attempt by the Chief to assume absolute power over every function of village government, including "the authority to decide who is in violation and what the penalty should be." She urged her "friends and neighbors" to vote "No". She urged the Village citizens to help keep the Village "The Land of the Free and not the Land of the Fee."

Ultimately the Resolution was defeated and the Mayor's supervisory responsibilities over the CEO remained in tact. After its defeat the Chief responded to the Mayor's written attack on him. In this written report, which was apparently read at a public meeting of the Trustees, he attacked the Mayor for various actions she has taken in the past which he claimed were contrary to the best interests of the Village and its citizens. In addition he questioned her integrity and motives in advancing her various positions on issues facing the Village. He called her a liar in connection with a number of her comments concerning the Chief and the BPD.

The Mayor, several years before, and while a part of a majority of the Trustees, voted to cancel the Villages financial and other obligations to the Chief in connection with his employment contract. The Chief sued the Village and a settlement was reached reinstating many of the Villages contractual obligations to the Chief. In addition she has, in the past, sought the dissolution of the Police Department as a cost saving measure for the Village. Also, she has taken positions, first as a Trustee, and then as Mayor which threatened the Chief's health insurance and potentially other benefits. In his written report to the Trustees, after the defeat of the Resolution, he accused the Defendant of threatening him and attempting to "financially hurt my family". He accused her of engaging in coercive conduct toward him in order to force him to agree to accept less compensation than provided for in his contract. He labeled her attacks as personal. The Chief concluded his written report to the Trustees as follows:

In, conclusion, I truly feel sorry for many of the people of Brockport. They have and continue to be duped with lies, inaccuracies, scare tactics, terms like police state, statements taken out of context, and a number of other less than honest ploys to achieve various objectives. There remain people in this community that have done things wrong and illegally for so long they actually feel they have an entitlement to continue as they always have. Let me assure you this hasn't been and will not be the case as long as I'm honored to hold this position and serve this community.

This referendum, and all the propaganda that was associated with it, was never about the enforcement aspect of the code which will continue to be administered in a fair and equitable manner, but more so the policy and procedural aspect of the Code Enforcement or in this specific Village the lack thereof .

Prior to becoming Mayor, the Defendant as a Village Trustee, was the liaison between the Village Trustees and the Police Department. The Chief requested that she be removed as liaison to the police Department by memo to the Trustees, the then Mayor, and the Village Manager. In the Memo he outlined a number of the reasons for his request. [*14]

Among the complaints the Chief outlined his concern that the Defendant had in the past, without notice to the Chief, approached the Sheriff of Monroe County requesting a meeting to discuss the Sheriff Department's taking over of the Village Police responsibilities. Further he indicated that he called her directly to inquire as to why she would approach the Sheriff about a matter which directly affected the BPD without notice to him or his assistance. During this same call the Chief stated in his memo that the Defendant said that she did not trust the Police Department "as a result of a police investigation that resulted in the Trustees attempting to FOIL a police report involving her." He outlined how, in the past, she has opposed his requests to the Village Trustees for funding for additional police personal and other reforms that the Chief presented as "cost saving measures." Also in the memo the Chief questioned the Defendant's motives and whether she was acting in good faith in connection with her repeated and consistent opposition to his requests.

In addition she supported an unsuccessful attempt to dissolve the Village, which would have had the effect of eliminating the Village Police Department and the unemployment of the Chief and also the CEO.

On March 9th, 2012, the date on which the Official Misconduct and various Code violations were lodged against the Mayor, her male companion, Norman Giancussio, was also charged by complaint filed by the Chief with reckless endangerment. The complaint against Giancursio was based on the same depositions of the tenants which underlie the charges against the Mayor. His conduct which allegedly endangered the tenants occurred at the home of the Mayor while the tenants resided in the apartment at that location. At a jury trial held before this Court Mr. Giancursio was acquitted approximately 20 minutes after the start of deliberations.

Shortly after the Defendant's and Giancursio's arrest the BPD issued a press release reporting the Mayor's arrest to the media and announcing that a press conference was to be held in connection with the arrest. The Chief credibly testified that the press release was standard procedure in any high profile case.

In addition, the President of the Stetson Club, the union which represents the BPD, who is also a BPD Officer, issued a public statement quoted in part below:

"Why is it if a member of the union were to get accused of a crime let alone get arrested, as the Mayor did, that member would be immediately suspended pending the outcome of either the investigation or the court case?

Yet the Mayor who over sees the police department does not follow the same standard.

If the Mayor isn't going to resign, then at the very least she should take a leave of absence just like any police officer would have to step aside from doing their regular job .

Innocent until proven guilty is not something that is afforded to police officers."

We have not heard the Mayor once say she is innocent of the charges. We have all seen copies of the witnesses' statements and the cancelled checks made out [to] the Mayor for rent. So when will [*15]the person, who over sees the police department, take responsibility for her "alleged" actions?

It bears repeating that the sources for the above are the testimony provided at the Clayton Hearing and the motion papers filed by the parties with attached documentation. I have referenced these circumstances only to the extent they related to the motion to dismiss in the interest of justice.

I have not formed any opinion favorable or unfavorable to the various positions and conflicts between the Mayor and the Chief. Except I would note, there is little doubt, without regard to the merits of the various positions, that it is the good citizens of the Village who have suffered as a result of these continuing disputes between high ranking Village public officials and their inability to resolve these issues in a diligent and civil fashion. I suggest that the proper performance of their official duties and responsibilities, and their obligation to serve the best interests of the good citizens of Brockport mandate that that they do so.

In connection with a motion to dismiss in the interest of justice, the legislature, in CPL §170.40 set forth ten factors which a Court must consider, if applicable, in determining the application. These factors are generally unrelated to guilt or innocence. And the decision whether to dismiss a charge in the interest of justice is within the Courts considered discretion, though not without limits. This procedure allows, where appropriate, the letter of the law to gracefully succumb to the spirit of justice. [People v. Rickert, 58 NY2d 122, People v. Colon, 86 NY2d 861, People v. Davis, 55 Misc,2d 656, 659] It is important to note that a dismissal in the interest of justice is not an acquittal and not a determination of the merits. Rather it leaves the question of guilt or innocence unanswered. [Ryan v. New York Tele-phone, 62 NY2d 492, 504; Miller v. Stone, 123 Ad2d 750]

In deciding a motion to dismiss in the interest of justice the court is charged with considering among other factors the interests of the accused, the complainant, and the Community.[People v. Rickert, 58 NY2d 122] Of most importance here, in light of the circumstances set forth above, is the interest of the Community of Brockport and its citizens right to fair and effective government.

The ten factors set forth in CPL §170.40 and their applicability to the Code violations and the Penal Law violations are as follows:

1.The Seriousness and Circumstances of the Offenses. The Code violations are serious given the above circumstances. The Housing, Zoning, and Property Codes are the products of a legitimate Government function to protect its citizens by ensuring that rental properties meet certain minimum safety requirements. While some may consider these requirements onerous, they are still, like all citizens, bound by the law. Intentional disregard of the law, especially those intended to promote the public's welfare, is not an option for any citizen. This tenet of citizenship applies to all, including government officials, whether acting in their private or public capacities.

The charged Code violations amply and completely define the nature and scope of her alleged misconduct as a private citizen. The penalties allowed, if these charges are sustained, provide an adequate range of redress. There is absolutely no nexus between her alleged misconduct and her public position. In light of all of the circumstances set forth above there is absolutely no reason to escalate the charges, using a rather novel theory, to include the charge of Official Misconduct. [*16]

The alleged acts were in no way connected to or furthered by the Mayor's public position. For instance she did not use her authority or position to cause the CEO to ignore the violation. She did not seek to bribe or otherwise influence other public officials to ignore the violation. She acted as a private citizen and it is mere happenstance that she is also the Mayor.

In addition allowing this charge to stand based on conduct totally unrelated to the Defendant's public function would give the police of every municipality the power to charge those who have supervisory authority over them with serious criminal offenses for even the most innocuous of offenses. This power could well have a chilling effect on the duty and willingness of the executive to properly supervise the police for fear of retaliation.

The nature of the allegations here does not warrant a charge of Official Misconduct.

The charge of Falsifying Business Record is based on the allegation that the Defendant failed to file a registration of intent to rent an apartment in her home and to apply for a Certificate of Occupancy. Her conduct in this regard is fully covered by the alleged Code violations. The allegations do not justify an additional charge of the Class A Misdemeanor of Falsifying Business Records. To hold that this charge applies in every case where a citizen fails to file a particular document or apply for a permit from a government entity is to open a Pandora's Box that would subject even the most saintly of citizens to criminal prosecution at the hands of an overly zealous Police Official.

Some of the conduct which would be criminalized under this theory includes, a child, adult or senior citizen who operates a motor vehicle without a license, or fails to renew a registration or on an expired license in a timely fashion, a licensed driver who fails to file a change of address form with the Motor Vehicle department, a homeowner who fails to license his dog or secure a permit to build a shed or a deck, or install a pool. The fact this offense also requires an intent to defraud does not lessen the danger. Under our law conduct which can be considered fraudulent has an extremely broad in scope. The benefit of not paying a fee or conduct which prevents a government entity from performing a government function required by law can be considered a fraud. [People v. Hendley, 37 Misc 2d 815, People v. Kase, 76 AD2d 532, affd. 53 NY2d 989]

In addition and like the charge of Official Misconduct, allowing this charge to stand, under the circumstances, creates an intolerable danger of having a chilling effect on the Executive's duty to supervise the Police. The Code violations amply address the alleged misconduct of the Mayor and provide for appropriate penalties if she is convicted. Under all of the circumstances, there is no rational basis to allow the charge of Falsifying Business Records to stand. And to do so would constitute a dangerous extension and application of the criminal law.

The overly strict interpretation and application of the letter of the Penal Law and Village Law, underlying these Penal Law charges, is not warranted under of the circumstances of this case. [People v. Thompson, 58 Misc 2d 511; People v. Feerick, 93 NY2d 433; People v. Davis, 55 Misc 2d 656, 659] I find that there are more than sufficient reasons to grant the Defendant's motion to dismiss this charge. [*17]

Therefore, as to the Penal Law charges, the circumstances surrounding this entire unfortunate affair warrant allowing "the letter of the law to gracefully succumb to the spirit of justice". [People v. Davis, 55 Misc 2d 656, 659]

2. The Extent of the Harm Caused by the Offenses. The violation of the Code provisions constitutes harm by its very nature. The tenants, the neighbors, and the Community are entitled to the enforcement of a Code which has as its purpose the implementation of restrictions and requirements rationally related to the public good and safety.

And for all of the reasons set forth above the charges of Official Misconduct and Falsifying Business Records are not justified under all of the circumstances. Whatever harm occurred here is not directly related to the Mayor's official duties. And as indicated above the lodging of the charge of Falsifying Business Records, under the circumstances of this case, is not justified. [People v. Davis, infra.]

3.The Evidence of Guilt, Whether Admissable or Inadmissable at Trial. No issue concerning the admissibility of evidence has been raised in this case.

4.History, Character, and Condition of the Accused. To my knowledge the Defendant has no prior record and has been, subject to these allegations, a law abiding and contributing member of society her whole life. However, the lack of a criminal record alone is generally not sufficient to justify granting of a motion to dismiss charges in the interest of justice. [People v. Kelly, 141 AD2d 764; People v. Hold, 22 Misc. 297]

5.Any Exceptionally Serious Misconduct of Law Enforcement Personnel in the Investigation, Arrest, and Prosecution of the Accused. On a prior occasion I denied the Defendant's application to dismiss the charges on the basis of Prosecutorial Misconduct and Selective Prosecution. I also found no misconduct by the Police. I see no reason to change that determination. I am concerned however, given all of the circumstances set forth above about the possible appearance of impropriety.

The history of conflict between the Chief and the Mayor does not immunize the Mayor from prosecution for her misdeeds. However, and especially in light of the relationship between the parties outlined above, there is a serious danger that there are those in the Brockport community who will be concerned that the charges are the product of this conflict, rather than a legitimate basis.

As a result special care is warranted to ensure that this prosecution is free form even the appearance of impropriety. Further it is important, given all of the circumstances stated in this opinion, that any question of the appearance of impropriety concerning these charges be addressed.

As part of the Court's analysis it is important to ensure that the charges, as lodged, are justified and supported by the factual allegations, rather than the result of an overly strict application of the letter of the law. In this way even the appearance of impropriety by law enforcement will be eliminated. Relevant to this inquiry is the nature and basis of the relationship which existed between the Mayor, the Chief, and the CEO. [*18]

Therefore, I would be remiss if I did not note the following. It was clear to me, based on the manner of the CEO's testimony, that it was his policy, whenever possible, to work out Code violations in the least intrusive manner and without Court involvement where possible.

Further, based on his testimony at the Clayton hearing I find that the lodging of the Code charges by appearance ticket was an appropriate exercise of his discretion. My opinion in this regard is based on his testimony and the sworn depositions, including the nature of the alleged Code violations, the Mayor's official position, and the allegations that she not only violated various Code provisions, but also took steps to cover up these violations.

Of particular importance is the allegation that at the point of discovery the violations had ended, by virtue of the fact she was no longer renting an apartment in her home. The CEO candidly testified that, under this circumstance, the use of any enforcement tool other than an appearance ticket would be tantamount to ignoring the violation. The Defendant's position of public trust, her alleged misconduct in connection with the Code violations, and the confidence of the Community justified the CEO decision to issue appearance tickets.

However, as an aside, I would note that I am concerned about the appearance of impropriety or possible bias in connection with the CEO's actions as they relate to the Mayor. While the CEO's position is protected by civil service, his direct supervisor is the Mayor. In addition and as part of his duties he often received referrals from the police department in connection with Village Code violations. Prior to the charges there had been a move by resolution to transfer responsibility for his supervision from the Mayor to the Chief. This resolution was supported by the Chief and opposed vehemently by the Mayor. During this dispute his office, on majority vote of the Board was moved from the building housing the Mayors office to the building housing the Police Department and the Chiefs office. On the resolutions defeat he was then moved back to the Mayor's office building, on order of the Mayor.

The circumstances as they developed here and the history of conflict between the Mayor and the Chief placed the CEO between the proverbial rock and the hard spot, referring to the Chief of Police and the Mayor. Any action he took here would be viewed by some as showing bias and favor to either the Mayor's faction or the Chiefs faction.

I suggest given all of the circumstances set forth above, and the state of the relationship between the Chief and the Mayor, it was not the best course for the CEO to meet with the Chief in order to discuss with him the decision of how to proceed against the Mayor, in connection with the Code violations. The path he and the Chief decided upon was the most severe of all of the options available to the CEO, to wit: the issuance of appearance tickets for each alleged Code violation.

To avoid even the appearance of impropriety it would have been the better course, at a minimum, for the CEO to have made this decision independently, without input or direction from the Chief. At the very least it would have been a better course for the CEO to have either consulted with an independent source or to have turned his investigation and any decision on how or whether to prosecute these alleged Code violations to that independent authority, perhaps a CEO of a neighboring municipality, with no connections to the Village. [*19]

I suggest that the CEO, the Village Board, and or other appropriate authority develop a policy addressing situations where a potential of a conflict of interest exists. Certainly it would not be too difficult to transfer the Village CEO's decision making process in such circumstances to a CEO of a municipality unconnected to the Village or, at least to request a second opinion from an independent source

In addition it would behoove the Trustees to develop a set of written guidelines to assist the CEO in connection with which enforcement tool to use under the circumstances of any case. This suggestion is not based on any perceived, actual bias or impropriety of CEO's conduct in this case. Rather the suggestion is simply meant to avoid even the potential of the appearance of impropriety in the future. I would suggest that the citizens of Brockport deserve no less.

However, all of this being said, I find the CEO credible and that he was justified in issuing an appearance ticket in the first instance. He testified that he chose this path because the Code violations had ended at the point of discovery. He testified that absent an ongoing violation he had no authority to impose sanctions on a violator. He testified any lesser enforcement would amount to ignoring the alleged misconduct of the Mayor. Under these circumstances, which he testified he had never encountered before in his 10 plus years as a CEO, he issued an appearance ticket charging the Code violations which are now pending before this court.

The Chief, in his testimony at the Clayton Hearing was adamant that that neither bias nor hostility toward the Mayor played a part in his decision making process and his decision to charge the Penal Law crimes. I am not as much concerned with actual impropriety here, as I am the appearance of impropriety, especially given the history, intensity, and nature of the conflict between these two individuals for several years prior to the charges being lodged.

I am further concerned with the theories underlying the Penal Law charges. The charge of Official Misconduct, a Class misdemeanor and a crime, is derived from a Village Law provision that states in substance that a Mayor of a Village is charged with enforcing and prosecuting all laws, codes and regulations. [Village Law §4-400-b] By relying on this obscure section of the Village Law, that for some unexplained reason seems to apply only to the Mayors of Villages, these serious Code violations were bootstrapped to a more serious crime defined under the Penal Law.

While I find no specific impropriety and believe there is none, I conclude the appearance of impropriety created by all of the above circumstances requires dismissal of this Penal Law charge. This conclusion is all the more compelling given what I view as a weak or non-existent factual basis underlying these Penal Law charges.

I am also concerned that sanctioning the logic underlying this charge would give the police the power to charge a village mayor or any other public official charged with upholding the law with a serious criminal offense upon the commission of the most minor of offenses and without regard to whether the offense in question was committed in the official's public or private capacity. Clearly this would be contrary to the Communities best interest, a relevant factor to this decision. [People v. Rickert, 58 NY2d 122] [*20]

Some of the offenses that come to mind are speeding and other minor traffic offenses, failure to license a dog, or secure a permit for a deck or shed, the failure to maintain ones property including cutting the grass. And the element of benefit which is required to commit the crime of Official Misconduct can be argued to exist for all of these minor offenses. The benefit achieved by speeding is arriving at ones destination faster, the benefit of failing to secure a necessary license or permit is avoiding a fee and the conditions which must be met to secure the permit, and the benefit from not maintaining ones property is the saving of money and time. The potential result would be to chill the ability of the Executive to properly supervise the police for fear that the police may use a relatively minor violation of the law to charge a Penal Law crime.

The Chief and another high ranking Village Police Officer filed complaints charging the Mayor with Official Misconduct and Falsifying Business Records. Thus the Chief, not only played an important role in the decision to invoke the most sever of the various Code enforcement tools, but he also made the decision to raise the stakes in connection with these Code violations, by also charging two Class A misdemeanors defined in the Penal Law - Official Misconduct and Falsifying Business records.

Neither Counsel nor I, through my own research have been able to find another New York case where Penal Law criminal charges of this nature were lodged in connection with these types of Code violations.

In connection with the charging of the Penal Law violations I find no actual impropriety on his part. Quite frankly I do not envy the position all of these circumstances placed him in. And it bears mentioning that the Prosecutor through his examination of the Chief developed instances, where on several occasions, the Chief afforded the Mayor every courtesy. In addition he personally and careful conducted an investigation over several months prior to lodging the charges.

However, based on all of the circumstances set forth in this opinion above I find the need to avoid even the appearance of impropriety is critical to the interest of justice. Given the tenuous basis underlying the Penal Law offenses and the relationship between the Chief and the Mayor, I agree with Counsel for the Defendant that the Penal Law charges must fall in the interest of Justice.

However in connection with the Code violations I can see no reason which would warrant dismissal.

6.The Purpose and Effect of Imposing Upon the Accused a Sentence Authorized for the Offense. The allegations underlying the Code are serious. They involve allegations that the Mayor, a public official, the Chief Executive of the Village, representing the citizens of Brockport, knowingly and intentionally ignored the Law. To quote an old adage no one is above the Law. And this age old principle is all the more applicable to a public servant sworn to uphold the very same law she is accused of violating. Further the charges are made more egregious by the allegations that the Defendant took steps to ensure that her disregard of the Law would not be discovered. If established, through the legal process, appropriate sanctions are in order.

And just as important, if not more so, the citizens of Brockport are entitled to a determination of [*21]whether, the Mayor, an elected representative has ignored and violated the duly enacted laws of the Village of Brockport and her obligation, like any citizen to obey the law. The citizens of Brockport are entitled to a fair and full hearing to determine the validity of these alleged Code violations. These allegations, if sustained, would be an appropriate factor to be considered by the electorate in connection with any future bid by the Mayor to continue in public office. On the other hand, if they are not sustained, the Mayor will be rightfully freed from any taint on her reputation and future political aspirations.

However and given all of the circumstances set forth above I can see no justifiable reason to continue the Penal Law charges. The stigma of a criminal conviction under the Penal Law is not justified by the circumstances.

The penalty provisions applicable to anyone convicted of the charged Code violations are more than adequate.

7.The Impact of a Dismissal on the Safety Or Welfare of the Community. The Codes in question are the product of a legitimate Government function to provide rules and regulations which promote the health, safety and welfare of its citizens. Any signal which would send a message that substantial violations of these various Code provisions will be ignored by the Justice System is not consistent with the welfare and/or safety of the community. And any signal that these important provisions will be ignored because the violator holds a public office in the community would constitute an intolerable affront to the Community's right to the fair and unbiased application of the Rule of Law. Respectfully, I decline to send such a signal. The Code charges will not be dismissed in the interest of justice based on this factor.

However, the dismissal of the Penal Law will not have an adverse impact on the public safety and/or welfare. And in fact, in my opinion will serve those public interests for all of the reasons set forth above including the avoidance of even the appearance of impropriety; the weakness of the factual allegations submitted in support of these charges; the fact that the Code violations constitute the real violations underlying this case and if sustained provide for significant penalties; and the fact that allowing the Penal Law charges to stand will potentially have a significant and deleterious impact on the ability of the Executive Branch to fulfill its responsibility to effectively supervise police personnel.

8.The Impact of a Dismissal Upon the Confidence of the Public in the Criminal Justice System. Given all of the circumstances set forth above a dismissal of the Code violations would be an affront to the Brockport Community and undermine its confidence in the Criminal Justice System. A dismissal of these charges would send a message that there is one set of rules for the Public Officials, who develop and pass important laws, and those that they serve, to wit the citizens of their respective communities.

However, it is unlikely that there will be an adverse impact on public confidence by the dismissal of the Penal Law violations, under the circumstances outlined above.

9.Where the Court Deems it Appropriate, the Attitude of the Victim or Complainant with [*22]Respect to the Motion. Based on the testimony of the Chief I assume the BPD supports full prosecution of these charges. He makes clear that the tenants support the prosecution of the Code charges and is less clear whether he ever discussed with them their feelings in connection with prosecution of the Penal Law charges. I am considering the feelings of everyone tempered by all of the circumstances discussed above including the fact that the allegations contained in the supporting depositions of actual harm to the tenants are less then substantial.

10.Any Other Relevant Facts Indicating that a Judgement of Conviction Would Serve No Useful Purpose. In connection with the with the decision to dismiss the Penal Law charges in the interest of justice, I would incorporate everything set forth above in Factors 1 through 9, and each and every other fact and circumstances discuss throughout this opinion.

ORDER

Therefore it is the order of this Court that the Defendant's motion to dismiss the Code violations is denied in all respects. Further it is ordered that the Defendant's motion to dismiss the Penal Law charges of Official Misconduct and Falsifying Business records in the Second Degree is granted on the grounds set forth above.

This constitutes the decision and order of this Court.