Justice Court of the Village of Farmingdale, Nassau County, December 27, 2021

Robert P. Kirk, Village Prosecutor, for plaintiff.

Gayle Lamountain, defendant pro se.

Facts and Arguments

On November 12, 2021, an arraignment was held before this court for defendant Gayle Lamountain whose motor vehicle was issued parking ticket F208342 (hereinafter ticket) by a Village of Farmingdale Code Enforcement Officer on July 28, 2021. The ticket states "THE PEOPLE OF THE STATE OF NEW YORK V. OWNER/OPERATOR OF THE MOTOR VEHICLE DESCRIBED BELOW." The description of the motor vehicle is then provided on the ticket. The defendant, who appeared pro se, stated on the record that she is the owner of the vehicle noted on the ticket.

Under the description of the motor vehicle, the ticket reads as follows: "YOU ARE HEREBY CHARGED WITH THE FOLLOWING VIOLATION WHICH WAS OBSERVED BY THE DEPONENT IN HIS/HER PRESENCE."

At the bottom of the ticket there is the signature of deponent and a section marked "Violation" that has been filled in with the words "Expired Registration." The deponent is Bruce Watson, who was a Village Code Enforcement Officer at the time the ticket was issued.

On the left side of the ticket, below the heading "Village Code," there is a column of little boxes with each box noting a numerical code section and type of offense. The court notes that the box marked "401-1A Expired Registration" is checked off on the ticket.

The problem is, no Village Code § 401-1A exists. When the court questioned the Village Prosecutor about the nonexistence of the Village Code provision noted on the ticket, the Prosecutor informed the court that the box marked 401-1A is a reference to Vehicle and Traffic Law § 401 (1) (a), and not a Village Code provision. The same explanation applies to the boxes marked 306B, 403, and 402-1 on the ticket, all of which relate to Vehicle and Traffic Law sections and not to provisions of the Village Code (although there is a Village Code § 402-1, which {**74 Misc 3d at 498}pertains to "Peddling and Soliciting" but not to a parking [*2]offense). Therefore, if the ticket was issued for a violation of Vehicle and Traffic Law § 401 (1) (a), it would appear that ticket does not conform to the requirements of Vehicle and Traffic Law § 238 (2) in that there is an incorrect "description of the charged violation, including but not limited to a reference to the applicable traffic rule or provision of this chapter."

This court recognizes that other courts have allowed, upon motion, cross-outs or corrections on traffic tickets if the proposed amendment is a defect or error which relates to a matter of form or the numerical designation of the charge, so long as the theory of prosecution hasn't changed or the defendant has not been prejudiced. (See People v Pena, 146 Misc 2d 767 [Crim Ct, NY County 1990]; People v Kreismann, 162 Misc 2d 726 [Kensington Just Ct, Nassau County 1994].) In the case at bar, however, the correction, if made, changes the offense charged against the defendant from a violation of the Village Code, which does not contain a description of the offense or the associated penalties and fines, to a violation of state law that lists every element of the offense, as well as the penalties and fines that may be imposed (which differ in several respects from the "Fines" noted on the right side of the ticket for the box marked 401-1A). In addition, such a correction to this ticket would not resolve, prior to a court appearance, other already printed and misleading village traffic tickets from being issued for Vehicle and Traffic Law offenses, nor would it justify the issuance of Vehicle and Traffic Law § 401 (1) (a) violations that may conflict with the requirements of Vehicle and Traffic Law § 1640, which pertain to permissible village traffic regulations (especially because a violation of Vehicle and Traffic Law § 401 [1] [a] [unregistered motor vehicle] applies only to motor vehicles operated or driven upon the public highways of this state, and not to parked vehicles), thus raising possible due process and ethical concerns.

But even if the court did allow, upon motion by the prosecution, a correction to the ticket (noting the violation is issued under the Vehicle and Traffic Law), it doesn't solve the problem in this case.

The Vehicle and Traffic Law is state law. When the Village Prosecutor was asked by the court as to what authority exists for Village Code Enforcement Officers to enforce state laws, the Prosecutor asked for time to review the Village Code. Following a 28-day recess, the People requested that the case be{**74 Misc 3d at 499} dismissed in the interest of justice. Based upon the opinion and decision set forth below, this court does not need to discuss the procedural defects or other aspects of the People's request or to rule on the motion itself.

Opinion and Decision

Following a review of the Vehicle and Traffic Law, the Criminal Procedure Law, and the Village Code, no authority can be found, nor was any presented by the People, for Code Enforcement Officers of the Village of Farmingdale to issue parking tickets pursuant to the state Vehicle and Traffic Law.

There is section 7-2 of the Village Code which gives the authority to Code Enforcement Officers "to issue appearance tickets under the provisions of § 150.10 of the Criminal Procedure Law of the State of New York and under the Code of the Village of Farmingdale."

However, section 7-1 of the Village Code specifically defines such an appearance ticket as a written notice "directing a designated person to appear in Village Justice Court of the Village of Farmingdale at a designated future time in connection with an alleged violation of a designated offense under the provisions of the Code of the Village of Farmingdale." (Emphasis [*3]added.)

Therefore, sections 7-1 and 7-2 of the Village Code say nothing about the authority of Code Enforcement Officers to issue written notices (appearance tickets) for violations of state law, only the authority to issue such notices for designated offenses under the provisions of the Village Code.

In addition, section 150.10 of the CPL states:

"An appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title." (CPL 150.10 [1] [emphasis added].)

Village Code Enforcement Officers are not police officers as defined in section 1.20 (34) of the CPL. Their authority to issue{**74 Misc 3d at 500} an appearance ticket as a public servant is derived from the Village Code provisions enacted pursuant to the Municipal Home Rule Law. Such authority is contained in chapter 7 of the Village Code, which only authorizes the issuance of an appearance ticket for an alleged violation of a designated offense under the Code.

Furthermore, an appearance ticket does not confer upon this court jurisdiction over the defendant. (People v Ashkinadze, 167 Misc 2d 80 [Crim Ct, Kings County 1995].) Jurisdiction is obtained by filing an accusatory instrument. In the case at bar, the accusatory instrument is the ticket itself, which presumably is issued in accordance with chapter 98 (Vehicles and Traffic) of the Village Code. Chapter 98, however, has no provision relating to the enforcement of the state Vehicle and Traffic Law.

There is no question that the Incorporated Village of Farmingdale has the authority in accordance with section 1640 of the Vehicle and Traffic Law and under section 98-2 of the Village Code to establish traffic regulations consistent with section 10 of the Municipal Home Rule Law including regulations that are equivalent or analogous to certain provisions of the Vehicle and Traffic Law. A village cannot, however, arrogate to itself the authority to enforce the Vehicle and Traffic Law. (People v Thompson, 157 Misc 2d 233 [Westbury Just Ct, Nassau County 1993].) With respect to the Vehicle and Traffic Law section at bar, there is no equivalent or analogous Village Code provision in chapter 98 of the Village Code or elsewhere in the Village Code. Because no such Code provision exists, this court does not have to determine the validity of such a provision or the authority of the Village to establish traffic regulations equivalent to Vehicle and Traffic Law § 401 (1) (a) or any of the other Vehicle and Traffic Law sections noted on the ticket.

Although this court holds the highest respect for the Village Code Enforcement Officers who are diligently doing their jobs for the Village of Farmingdale and the residents of the Farmingdale community in enforcing the Village Code, a mistake was made. Perhaps it was because no one (including this court) had directly addressed this issue before. I have no doubt that the Village Code Enforcement Officer who wrote parking ticket F208342 honestly believed (albeit incorrectly) that he was empowered to write a parking ticket for a violation of state law.

Therefore, based on the foregoing, it is the decision of this court that the Farmingdale [*4]Village Code Enforcement Officer{**74 Misc 3d at 501} had no authority to issue parking ticket F208342 for a violation of a state Vehicle and Traffic Law. Accordingly, this ticket is dismissed.