Opinion
Decided September 24, 2007.
DWIGHT D. KRAEMER, ESQ., Village Attorney and Prosecutor, Westbury, NY, for the Village.
BRIAN GUCCIARDO, ESQ., Northport, NY, for the Defendant.
The defendant, Alba Garcia, a landlord and owner, is charged with various violations of the Incorporated Village of Westbury Building Code at 463 Franklin Street, Westbury, New York on January 31, 2007. The charges are as follows:
Summons No. Charges
5908Chapter 79, Article III and Section 79-12
Construction, alteration, conversion without a permit.
5909Chapter 79, Article III and Section 79-15B
Occupancy without obtaining a Certificate of Occupancy
( Basement Apartment).
5910Chapter 79, Article III and Section 79-15c
Conversion (Change of Use).
5911Chapter 83, Article IV and Section 83-6C(2)
Cellar used as habitable space.
5912Chapter 112, Article I and Section 112-7
Electrical work performed without a license.
5913Chapter 112, Article I and Section 112-9
Electrical work without inspection and Certificate of Compliance.
5914Chapter 184, Article I and Section 184-4
Plumbing without obtaining a license. (Basement apartment/bathroom).
5915Chapter 184, Article II and Section 184-7A
Plumbing without a permit.
5916Chapter 184, Article XXXII and Section 248-283
Renting without a permit.
There are, of course, two types of crimes or offenses. Malum in se types which require intent and/or knowledge on the part of the defendant that they are committing a crime or offense. These types of crimes are said to require malice aforethought, deliberation, or the "evil mind." Malum prohibitum crimes or offenses are those that simply require that the act itself, the actus reus, be proven beyond a reasonable doubt. No intent or knowledge is required to be proven.
See LaFave and Scott, Criminal Law, Hornbook Series (West Publishing Co., 1972) at 7.
Alleged Village Code violations tend to be in the nature of malum prohibitum offenses. They are less serious than crimes such as misdemeanor or felonies, and therefore, there is no additional requirement such as proof beyond a reasonable doubt of intent and/or knowledge as an element of the violation.
That being the case, the Court need not speculate as to when these alleged violations may have occurred. It is the responsibility of all homeowners to maintain their property as a legal structure. If, when they purchased the property, it did not have all required building permits on file with the Building Department, they have purchased the property subject to potential violations, and it is the responsibility of the new owners to clear them up, especially once detected by the Building Department.
When homeowners purchase property they do so with the property being in "as is" condition, subject only to the express warranties or representations contained in a written contract. As in the case of many acquisitions, real property is purchased with the doctrine of caveat emptor in mind, "let the buyer beware." In New York, all contracts for the sale of real property, in order to be enforceable, must be in writing. Once title passes at a closing, the warranties typically dissolve unless expressly continued. If a seller represents that the home is being conveyed as a legal one family dwelling, the contemporaneous use of it as something other than that is immaterial except, for example, a buyer may take the property subject to existing tenancies or require that they be removed. Even if the violations pre-date the seller's acquisition of the property, it is their responsibility to clear up those violations or to be potentially penalized for them. It is no defense to Building Code offenses that they may have pre-dated the owner's acquisition of the property. If they purchased the property without obtaining all required permits and certificates, they did so at their peril and have only themselves, and possibly the real estate brokers selling the property, or the attorneys, if any, who represented the owners in their acquisition of the property to blame.
There are many owners who have purchased real property knowing that it is a legal one family dwelling, but that it is being used for an illegal purpose, such as multiple family occupancy. See also, People v. Suppa, New York Law Journal, October 8, 1997 at 1, 25 and 28. Sometimes they buy the property as an investment hoping that the illegal use will remain undetected, and they then can continue to collect rental monies. Again, once detected by the Building Department, it becomes their problem and whatever right of recourse that they may or may not have against a prior owner, either in the distant or recent past, is wholly irrelevant and immaterial to this Court. The alleged violation is the problem of the current owner, not some other person or persons. The Village is under no obligation in its code enforcement measures to look beyond the current owner's real property.
Owners of property who claim a purported defense of "a prior non-conforming use" must, in the case of illegal occupancies or interior changes to the premises, show that the Village had notice of the illegal occupancy or construction and chose either deliberately or inadvertently, not to enforce the Code. It would be an excellent idea for the Legislature, in order to protect buyers of real property, if at the time of any sale, the Building Department is required to make a full inspection of the property and report on it to title companies for a fee, or issue violations to the extent of any non-compliance by the owner prior to title passing. This would eliminate all speculation as to whether the property has been maintained as a legal dwelling.
The Facts
Alba Garcia, an alleged owner and landlord of real property, to wit: a single family dwelling within the Incorporated Village of Westbury, rented the split level home to various individuals including her niece, Janet Kercek. Others then sublet or shared space with Ms. Kercek. Ms. Kercek was originally charged with the identical violations as Ms. Garcia. Just prior to the commencement of trial, the prosecutor moved to dismiss the charges against Ms. Kercek and simultaneously announced that he was conferring immunity upon her and asked the Court to So Order a subpoena for her testimony at trial. The Court advised the parties and counsel that it is procedurally unaware of any statutory authority for a Village prosecutor to confer immunity in a violation case. The Court declined to sign the subpoena pursuant to CPLR § 2307. The prosecutor then proceeded to serve the subpoena ad testificandum upon Ms. Kercek purportedly commanding her testimony at trial.
The defendant denied that the home was rented. For the reasons set forth herein, the Court concludes that the property was rented.
Neither the defendant nor the prosecution submitted a demand notice, C.P.L. § 240.20 or an Omnibus Motion. Both sides answered ready for trial. No speedy trial issues were raised. See People v. Joseph Vancol, 166 Misc 2d 93, 631 NYS2d 996 (1995) NY Misc. LEXIS 423, July 19, 1995, Decided. Speedy trial statute applies to zoning violations. See, New York Law Journal Aug. 8, 1995 at 1 and 26, col. 4.
Following trial, post-trial memorandums were submitted by both parties in support of their respective positions. This is a decision after trial. For the reasons detailed hereinafter, this Court finds the defendant guilty with respect to Summons 5916, and not guilty of the remaining charges. Accordingly, all remaining summons are dismissed.
First Legal Issue — Conflict
Mr. Gucciardo, defense counsel, advised that he was the attorney for Ms. Garcia and Ms. Kercek. The Court then, sua sponte, conducted a People v. Gomberg, 38 NY2d 307, 342 NE2d 550, 379 NYS2d 769 (1975) hearing to determine whether the defendants and their counsel perceived the potential and actual conflicts apparent to the Court. Defense counsel stated that he did not see the conflict or the need for a hearing. The prosecutor took no position. The Court then inquired of the defendant and Ms. Kercek whether they understood the nature of the conflict and that Mr. Gucciardo might, among other things, have to cross-examine Ms. Kercek. Having satisfied itself that the defendant and Ms. Kercek understood the nature of the conflict, the Court permitted the dual representation by Mr. Gucciardo.
When should an attorney disqualify or recuse himself or herself in a criminal case? The Court finds that an attorney should decline representation or ask to be relieved when the appearance of a conflict rises to the level where the lawyer cannot be a zealous advocate due to the nature of the conflict, and the defendant's rights are being compromised. See DR 5-105; DR 5-107; DR 5-108; DR 6-101; DR 7-101 and U.S. Const. Amend. V; U.S. Const. Amend. VI.
In People v. Gomberg, supra, defendants allegedly owned a massage parlor in New York City. 38 NY2d 307, 310 (1975). The alleged partners were charged with setting fire to competing massage parlors in an attempt to sabotage competitors. Id. The key witnesses against defendants were employees and an owner of a competing parlor. Id. The witness employees were paid accomplices who set the fires. Id. The owner of the competing business testified that the defendants threatened him that they would set fire to his business if he did not raise prices. Id. This corroborated the testimony of the three witnesses. Id. The main issue in Gomberg arose from the fact that the three defendants were represented by the same attorney. Id. at 311. Furthermore, another attorney from the same law firm represented two of the accomplices, who gave incriminating testimony against the defendants. Id.
The Court in Gomberg held that joint representation of defendants is not a denial of the effective assistance of counsel per se. Id. at 312. Conflict only exists when individual defenses "run afoul of each other." Id., citing to People v. Gonzalez, 30 NY2d 28, 34 (1972). Once a conflict is definitively established, courts will enter into calculations as to the amount of prejudice emanating from the conflict. Id. While engaged in this process, courts must be mindful that an important aspect of the right to counsel is the obligation of the courts to respect a selection of counsel made by defendant. Id. Such a choice of counsel should not be interfered with. Id.
Since the rights to effective assistance of counsel and retention of counsel of one's choice often clash when a retained attorney is involved in what appears to be a conflict of interest, a trial judge has a strong duty to protect the right to effective assistance of counsel for the accused. Id. at 313. However, it is important that the court refrain from arbitrarily interfering with the attorney-client relationship. Id. It is imperative, however, that courts recognize that a defendant may not always perceive the existence of a conflict of interest in joint representation by an attorney. Id. Therefore, the Court needs to be satisfied that, where there is joint representation, the defendant's decision to proceed with his attorney is a properly informed one. Id. The Court is permitted to inquire as to whether counsel himself has perceived the conflict and adequately informed his client of the risks involved. Id. Again, however, a court must not pursue its inquiry too far, so as to interfere with a defendant's right to retained counsel of his choice or to intrude upon confidential attorney-client communications. Id. In People v. Quiroz, Judge Susan T. Kluewer, of the Nassau County District Court, articulated the need to refrain from interference with a defendant's right to retain counsel: ". . . I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant's fundamental, albeit not absolute, right to counsel of his own choosing." 15 Misc.3d 1128(A), 2007 W.L. 1247257 (TABLE) (N.Y.Dist. Ct.), 2007 NY Slip Op 50985(U). Judge Susan T. Kluewer, decided April 18, 2007. See Rosamaria Mancini, Bid to Oust Lawyer in Criminal Case Fails Despite Family Court Conduct, New York Law Journal, May 3, 2007 at 1 and 2. Also Decided 4/18/07, District Court, Judge Kluewer. New York Law Journal, May 8, 2007 at 1, 21, and 23. Defense Counsel's Conduct in Family Court Matter Did Not Warrant Disqualification in Instant Case.
In Gomberg, the Court goes on to lay out the procedure for what must be done when two defendants are represented by the same attorney. 38 NY2d at 314. The Trial Court must ascertain, on the record, whether or not each defendant is aware of the potential risks involved in being represented by the same attorney, and has knowingly approved of it. Id. A preliminary inquiry of this kind occurs before the formal commencement of trial. Id. The Court in Gomberg asserted that it is appropriate for a trial court to place significant weight upon a counsel's representation that there is no conflict in joint representation. Id. The Court may rely on counsel's assurances that he completely discussed the potential for conflict with his client and received their approval. Id.
Here, this Court did engage in a type of preliminary inquiry as mandated in Gomberg. The Court here inquired, before trial, as to whether the defendant, Ms. Garcia, and Ms. Kercek, both understood the conflict presented here, including the fact that Mr. Gucciardo, counsel for both Ms. Garcia and Ms. Kercek, might have to cross-examine Ms. Kercek in his defense of Ms. Garcia. Per Gomberg, it is appropriate for a trial court to place significant weight upon a counsel's representation that there is no conflict in joint representation. Here, defense counsel Gucciardo stated to the Court that he did not see the conflict, and this Court relied upon his representation, but also made an inquiry of its own.
In United States v. Curcio, the Court held that defendants are sometimes better positioned to adequately determine the advantages and disadvantages of joint representation. 694 F.2d 14, 25 (1982). Defendants and their respective attorneys are the ones who are fully aware of what type of defense they will put forth. Id. Defendants, not the judges or prosecutors, will bear the responsibility and consequences of a conviction. Id. Accordingly, an evaluation of a conflict of interest should place much of the burden for a decision to go forward, despite a potential or perceived conflict of interest, with the defendant. The decision is primarily for the defendant, and the judge should not assume too much of a paternalistic attitude in protecting the defendant. Id., citing to Michigan v. Mosley, 423 U.S. 96, 108-09 (1975) ("Unless an individual is incompetent, we have in the past rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case.").
Here, Ms. Garcia and Ms. Kercek informed the Court they understood the nature of the conflict. Ms. Garcia and Ms. Kercek bear, and acceded to, the responsibility of their legal representation, and any ultimate consequences or results stemming from such legal representation. Further, there is nothing to suggest that either Ms. Garcia or Ms. Kercek is incompetent and incapable of making a reasoned decision regarding legal representation.
If either a prosecutor or a defense attorney demonstrates neglect or failure to adequately perform proscribed duties, or abdicates responsibility to provide sound legal judgment and advice regarding critical matters such as potential conflicts of interest in legal representation, it may be necessary for a court to, sua sponte, take the necessary action in order to effectuate the most just and proper legal proceeding. With respect to the potential for conflict here, the court is satisfied that Ms. Garcia and Ms. Kercek understood the nature of the conflict. Permitting the dual representation by Mr. Gucciardo is appropriate here.
Second Legal Issue — Hearsay
The Building Inspectors gained access to the home by invitation of Ms. Kercek. They did not gain access to the alleged basement area or the bedrooms on the top floor. The charges provided as follows:
"Based upon information of belief by tenant Janet Kercek that rents the house. I observed on main floor to the left side of house. Bedroom number three key locked door, rents it out to non-family member Nickilies? Refused to state amount of rent. Also stated by Ms. Janet Kercek. Information of belief. I observed the door that led to cellar apartment. Kercek stated two friends of mine rent out the cellar, Paul Bonnie and Catalina they pay me $825.00 monthly rent. They have a finished cellar with full kitchen, gas stove, sink, and their own bath and one bedroom. I personally checked the records at the building department and found no Certificate of Occupancy or permit that would allow the cellar to be used as habitable space. Therefore Alba Garcia personally maintained occupancy without Certificate of Occupancy of the cellar apartment."
While the Building Inspectors entered the home legally, they did not observe an illegal use or construction inside the home. They did not secure evidence, such as interior photos, for example. They rely primarily upon the purported statements of Ms. Kercek, which were not reduced to a writing or recorded in anyway. Since Ms. Kercek is no longer a defendant, the fact that she was not "Mirandized" and that her attorney did not request a People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965) hearing prior to trial is now academic. The Court has allowed her statements into evidence through the People's witnesses, the Inspectors from the Building Department. Now that Ms. Kercek is no longer a defendant, the issue of the voluntariness of any statements attributed to her is no longer an issue. The only issue presented here is whether the innocuous testimony of the Building Department's Inspectors coupled with the testimony of Ms. Kercek, and that of Ms. Garcia, is sufficient evidence of proof beyond a reasonable doubt to warrant a conviction on any of the charges.
In People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6 and Summaries of Selected Unpublished Opinions, Evidence, March, 1999 at 56; see, QDS:04700322, this Court suppressed evidence and dismissed charges in a case of alleged illegal occupancy where the Building Inspector was invited into a single-family home by a tenant. He was then given a tour of the interior and claimed to observe illegal conditions there. The tenant was not called to testify and the testimony of the Inspector was stricken based upon the fact that it was hearsay. The charges were predicated upon out-of-court statements by a non-party declarant, not available for cross-examination.
But here, the prosecutor called the tenant and she was available for cross-examination. Thus, the testimony is not in the nature of hearsay and it stands. However, the testimony of the tenant is not corroborated by testimony from the Building Inspectors alleging an observation of illegal conditions. To this Court, regarding corroboration, title D, section 60.22, of the Criminal Procedure Law, is relevant here. The statute is as follows:
60.22 Rules of evidence; corroboration of accomplice testimony.
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
3. A witness who is an accomplice as defined in subdivision two is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as infancy, immunity or previous prosecution, amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.
Crim. Proc. tit. D, § 60.22. Here, based on the facts of the instant case, Ms. Kercek fits within the definition of an accomplice. Ms. Kercek was a witness for the prosecution. Further, the prosecution has already demonstrated that it considers Ms. Kercek to have committed, or at the very least participated in, the same alleged offenses as the defendant, Ms. Garcia, by virtue of the fact that Ms. Kercek was originally charged with the identical offenses as Ms. Garcia. Therefore, for our purposes, based on the analysis of the statute, section 60.22(2)(a) is satisfied, and Ms. Kercek fits the definition of an accomplice.
Realizing that Ms. Kercek's statements to the Building Inspector Linares at the home were the focal point of its case, the prosecution dropped the charges against her and purported to confer immunity upon her. Section 60.22(3) articulates that a witness' role as an accomplice, as defined in subdivision two, is not negated if a prosecution of himself or herself is precluded through use of immunity. Crim. Proc. tit. D, § 60.22. Therefore, this Court concludes that Ms. Kercek is an accomplice, and for the purposes of section 60.22, per section 60.22(1), defendant Garcia may not be convicted of any of the charges brought against her by the prosecution, solely based on the testimony of Ms. Kercek, without corroborative evidence that tends to connect the defendant with the commission of the offense. See id.
Third Legal Issue — Hostile Witness
In giving her direct testimony, Ms. Kercek denied having made the statements attributed to her. There was then an application to declare her a hostile witness. That application was at first denied, and later granted. Ms. Kercek at trial denied the statements attributed to her in the charging instruments. In People v. Jordan, the Court held that the Trial Court erroneously declared a prosecution witness hostile, and therefore erroneously allowed impeachment by the prosecutor of that witness through the use of inconsistent statements. 398 NYS2d 556, 558 {59 AD2d 746} (1977). The grounds for the decision stemmed from the fact that the prosecutor was forewarned that the witness would not repeat his out-of-court statements in trial testimony. Id. The court stated: "The prosecution cannot claim surprise and, therefore, the declaration that [Brown] was a hostile witness was improper." Id.
In People v. Smith, the Court held that impeachment of the prosecution's own witness was improper due to the fact that the precondition of trial testimony disproving the position of the party calling the witness was unsatisfied. 481 NYS2d 879, 882 {104 AD2d 160} (1984).
The Court cited to Professor Wharton, in his treatise (see 2 Wharton, Criminal Evidence [13th ed], § 485), who put forth the rule as follows:
"A party may impeach his own witness because of the witness' adverse or hostile testimony only if it appears that the party was taken by surprise. Such surprise must be bona fide and founded upon an honest belief that the witness' testimony should have been different from that given.
A party cannot claim to have been surprised by his witness' adverse or hostile testimony when he had failed to make inquiry as to the witness' proposed testimony before calling him to the stand; when he had reason to doubt that the testimony would be favorable; or when he had no reason to believe that it would be favorable. Nor can a party claim to have been surprised when he had been informed by the witness himself that the proposed testimony would not be favorable."
Id. at 883.
Here, there is nothing in the record to suggest that the prosecutor was forewarned of Ms. Kercek's impending testimony denying the previous statements made to the Building Inspector that were attributed to her. Here, the prosecution was surprised by Ms. Kercek's testimony. Therefore, this court properly granted the application made to declare Ms. Kercek a hostile witness.
Furthermore, Ms. Kercek's attorney made no motion to quash the subpoena which purported to grant Ms. Kercek immunity, and ordered her to testify against Ms. Garcia. Additionally, neither Ms. Kercek, nor her counsel, Mr. Gucciardo, on her behalf, stated any intention whatsoever to refrain from testifying, or to testify in a manner that would contravene the prosecution's case against Ms. Garcia. Additionally, no challenge was put forth, nor any stipulation asserted, regarding impending testimony, despite an apparent lack of authority for the prosecutor to issue any such grant of immunity and the accompanying subpoena commanding a non-party to testify in a building ordinance violation case before a Village Court. In his post-trial memorandum, defense counsel Gucciardo delineates this very problem that the Court just referenced. Mr. Gucciardo states, "The grant of immunity' is questionable at best as it appears that the Village attorney doesn't have any authority to grant such immunity." Mr. Gucciardo continued, "Having procured such testimony under false or misleading promises should be sanctioned by this court." Post Trial Memorandum from Brian Gucciardo, Esq., Attorney for Defendant, at 5 (Aug. 15, 2007).
This Court does not necessarily disagree with the sentiments of Mr. Gucciardo. However, as articulated above, these motions were nowhere to be found in response to Mr. Kraemer's motions. Why were such objections not lodged to countervail the prosecutor's bold moves just prior to and during trial?
A judge has a duty to respect the roles of the prosecutor and the defense counsel. A judge has a duty to be a fair arbitrator of any proceeding in his courtroom, and he or she must let the parties play their respective roles and allow the trial to proceed. However, a judge might also be called upon to, sua sponte, take a necessary action in his or her courtroom, especially if the rights of a defendant demand it. This was appropriately addressed in People v. Tran, supra, where the court there held, "when a defendant is . . . ill-equipped to act or to protect his or her own interests, then it is for the court to do so." The Court in People v. Tran, supra, continued, asserting that it ". . . has some interest and responsibility' to insure that the defendant's rights were protected . . ." The law demands it and justice requires it. But most importantly, defendants' livelihoods and freedom depend upon it. The rights of a defendant are tantamount to, if not greater than, any of the constitutional foundations that sustain the strength of this country. If a judge in the course of a trial feels that these foundations are being eroded, the judge rightfully and appropriately should, and may, sua sponte, take necessary action to rectify that problem.
The declaration by a court that a witness is hostile is often the predicate for an attempt by the examining attorney to use that declaration as a basis for eliciting impeachment testimony. In this trial that did not prove to be the case. Classic impeachment occurs in an instance such as this one when the Building Inspector testifies that Ms. Kercek made inculpatory or evidentiary statements to him which she then denies during cross-examination. But, the essential step for impeachment that is missing from this case, is additional evidence to show that the witness is either lying or mistaken when she denied during the trial, making those statements to the Building Inspector. In this case, effective impeachment did not occur because it was not available. For example, in an observation of the violations by the Inspectors. That being the case, the testimony by the Building Inspector of Ms. Kercek's statements to him is neutralized by her denials. Although she was declared a hostile witness, she was not impeached and the testimony was thus, innocuous.
Specific Allegations of Statutory or Code Violations
The function of any prosecutor is to do justice. Nowhere in the Constitution is it stated that the prosecution is entitled to a fair trial. Rather, it is incumbent upon the prosecutor to insure that the defendant is afforded every protection under the Bill of Rights. It is a fundamental principle of American law that no prosecution may occur in the absence of due process of law. Judge Learned Hand put forth the following proposition: "If the prosecution of a crime is to be conducted with so little regard for that protection which centuries of English law have given to the individual, we are indeed at the dawn of a newera; and much that we have deemed vital to our liberties, is a delusion." United States v. Di Re, 159 F.2d 818, 820 (1947). The prosecutor must not merely enforce the law, but should utilize his or her discretion to use the law wisely. See, People v. Fox, 157 Misc 2d 238, 596 NYS2d 984 (1993) NY Misc. LEXIS 104, February 22, 1993, Decided. New York Law Journal, March 9, 1993 at 2 and 25. The prosecutor's oath is contiguous to the one taken as an attorney, promising to uphold the Constitution of the United States of America and to see to it that justice is done. ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Third Edition, 1993 by the American Bar Association. A prosecutor should never prosecute merely because he or she can. There are both good and bad laws. It is within the purview of the prosecutor to determine which laws, if any, should be utilized, and under what circumstances. The overarching test for any prosecution is whether fundamental fairness was bestowed upon the defendant or the accused. The so-called rights of victims and others are not constitutional. Rights of victims are statutory, and they must take a backseat to those afforded to defendants. That is a bedrock principle of American law which some may not like, but, nonetheless, it has helped to make us a free and democratic society.
The function of the defense is to fight zealously for their clients within the confines of the law. Traditionally, such zeal is displayed in the filing of demands for discovery and motions. It is further exemplified by compelling legal arguments or cross examinations that are made without fear or favor. It is absolutely vital that the defense stand tall for unpopular causes and clients, sometimes against formidable opposition from the Government, society at large and even members of the judiciary. Some years ago, a renowned French attorney was asked what his defense would be in his representation of the notorious Nazi War criminal, Klaus Barbie. He replied that it was: "to be against all laws and all humanity." His unparalleled statement clearly stretches the role of advocacy to, if not beyond, its outer limits. However, the remark forcefully provides a demonstrative glimpse of the alienation and separation from society and its laws that defense attorneys must not merely encounter, but must use to orchestrate the best defense for their clients. The odds against the defense are formidable. It takes great courage, insight, emotional strength and intellectual honesty to be a defense attorney. It may also require a recognition that the battles in which they must engage may disenfranchise them from society, making them into pariahs or alleged enemies of the State. The reality is, just as fulfilling the role of a prosecutor or judge with integrity and high regard for the law reflects patriotism, so does the proper fulfillment of the role of a defense attorney. Counsel for the accused is a fundamental component of our judicial system, our government, and our very way of life in this country. It is absolutely critical that this constitutional right to counsel be maintained and protected to the utmost; this is accomplished when a defense attorney provides as vigorous, if not a more vigorous, defense of an accused individual than would a prosecutor in prosecuting the accused. A defense attorney must absolutely be willing to put the interests of his client above his own, and as stated above, maintain the realization of the obstacles he or she may face. In this regard, all attorneys and judges would do well to periodically review the ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Third Edition, 1993 by the American Bar Association. Whether they are before the Supreme Court of the United States or this humble Village Court, or whether they are representing the wealthy or the poor, the duty of attorneys remains unchanged, and that is to be zealous advocates for their clients within the bounds of the law.
Judges have a different role to play. Their primary responsibility is to protect the fairness of the proceedings, without a hidden agenda. Judges who campaign for office with an advertized position of being pro law enforcement, or a partisan with conservative or liberal tendencies, for example, are stating a position that may appease the electorate, but which is antithetical to their function as judges. The extent to which judges should function as passive umpires, or proactive jurists acting sua sponte and intervening, to insure fairness in the proceedings as interpreted by the Court, is the dilemma faced by all judges. In short, when the attorneys or parties are doing their jobs, the judge can take a hands off position and do what judges should do best, interpret the law.
Thomas F. Liotti, Esq. And Christopher Zeh, Esq. Uneven Playing Field: Ethical Disparities Between The Prosecution And Defense Functions In Criminal Cases, Touro Law Review, Vol. 17, No. 2, Winter 2001.
The Court here describes these roles because of its concerns about the roles of the prosecutor, defense and Court in this case. This Court is reluctant to interfere in any way with attorneys doing their jobs. A Court can go too far, as was the case in People v. Thorpe, 1406. See Mark Fass, "Judge's Excessive Interference' Leads Panel to Upset Verdict," New York Law Journal, September 17, 2007, at page 1 and 2. In that case, the Appellate Division of the First Department in Manhattan reprimanded a Manhattan Supreme Court Justice for what it characterized as excessive interference in the examination of witnesses conducted by both the defense and prosecution during a criminal trial. Id. The panel in the Appellate Division ruled that the Justice's interference constituted reversible error. Id. It asserted that, "While we recognize that the dynamics of a criminal trial may result in some intervention by a trial judge in the examination of witnesses, the cumulative effect of the interference in this case was to obstruct counsel's effort to present a defense for his client." Id. The panel went on to say, "This is simply unacceptable." Id. This Court is tolerant of all legal arguments. But in a Village Court, parties often appear pro se, asin People v. Tran, supra, for example, or they cannot afford counsel or underestimate the significance of the proceedings, fines, or the sanctions that may be imposed. Unfortunately, this Court has all too often seen attorneys come before it who lack sufficient experience and knowledge of the Criminal Procedure Law and our Local Laws with respect to Building Code cases. See People v. Wilfred Dary, New York Law Journal, June 24, 2003 at 1, 21 and 27, col. 6 and People v. Beauvil, The Magistrate, Spring, 2004, Vol. 44, Nos. 2 at 22 and 23. In turn, this increases the demands placed upon the Court to insure the fairness of the proceedings, without overriding the roles of the prosecution and defense to proffer their legal strategies. Yet, when the prosecutor's conduct is unchecked by the defense or the defense's conduct by the prosecution, the Court must act in order to ensure that fairness occurs. An uneven playing field under such circumstances can only be made level by a proactive jurist. As the late United States Supreme Court Associate Justice Felix Frankfurter posited, "All systems of law, however wise, are administered through men, and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, but the capacity to correct errors of inevitable frailty is the mark of a civilized legal mechanism." Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis (1927), The World of Law II: The Law as Literature 82, 141 (Ephraim London, ed., 1960). A Village Justice has the capacity to correct errors of inevitable frailty in cases before a Village Court. Such is the case in this matter.
With limited power of judicial review, Courts may act like Jiminy Cricket of Pinnochio fame. They become the moral and ethical conscience of the proceedings in order to make sure that fairness abides. By their example, Judges are then called upon to remind the attorneys, the parties and even juries of what justice and fairness requires. They do this by their legal rulings. This Court is fully supportive of aggressive Code enforcement, but such enforcement can never come at the cost of the deprivation of constitutional liberties. People v. Ventura, (State Reporter Ref. No. QXK000666) (edited for publication); New York Law Journal, May 25, 2004 at 1, 17, 19 20, Evidence of Overcrowded, Illegal Two-Family Home Suppressed as Exceeding Search Warrant. This Court will set forth its rulings and reasoning with respect to each of the charges brought by the People below.
A. Summons No. 5908§ 79-12Construction, alteration, conversion without a permit
Mr. Gucciardo, counsel for defendant, asserts in his post-trial memorandum that, "Each and every summons is in connection with an alleged basement/cellar apartment. Therefore, an essential element of the charge is to prove that the premises actually had a cellar." Post Trial Memorandum from Brian Gucciardo, Esq., supra, at 7. Mr. Gucciardo asserts that, "it is not disputed that the premises is a split level home." Id. A split-level home is a home that is constructed in such a manner that the floor level of one part of the home is located about halfway between the floor level of the lower level of the home and the ceiling of the upper level of the home. The blueprints, building permits, and photographs confirm the home owned by Ms. Garcia, the defendant, is, in fact, a split-level home.
Prosecutor Kraemer contends the home has a basement and/or cellar apartment. Mr. Kraemer contends that based on Ms. Kercek's alleged testimony to Building Inspector Linares, the defendant is maintaining a cellar apartment in the home. It is not a violation of local law to have a cellar, but it is if used as habitable space. Ms. Kercek may, in fact, have claimed there was a cellar apartment in the home, and both building inspectors and Mr. Kraemer may believe there is a cellar apartment in the home. However, for our purposes, the subjective definitions of what Ms. Kercek, Mr. Kraemer or the building inspectors believe a cellar to be are not legally relevant here. For our purposes, the only cellar that can be present in the home is such that is defined by the Village Code of Westbury. Village Code Section 83-2 defines a cellar as, "that space of a building that is partly or entirely below grade, which has more than of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building." Westbury, NY, Code § 83-2. Therefore, the burden is on the prosecution to prove that "the space of the building that is partly or entirely below grade . . . has more than of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building." Id.
Building plans from 1955 were introduced into evidence by the prosecution. But the Court cannot determine from these architectural plans how much of the so-called cellar was below grade at the time of the construction or when these charges were initiated in March, 2007. The testimony at trial did not add to the Court's understanding in that regard. Furthermore, the testimony did not prove that the cellar was used as an apartment.
Neither building inspector actually observed or physically went in to the alleged cellar. There is no evidence of a cellar existing in Ms. Garcia's home as defined by the Code of the Village of Westbury, Section 83-2. The only evidence of the existence of a cellar is the alleged statements by Ms. Kercek to building inspectors when they visited the home, and the building plans received in evidence which do not tell us how much of the alleged cellar is below grade, and whether it is being used as habitable space. This alleged testimony is lacking in credibility, as Ms. Kercek's testimony at trial is in direct contravention to the statements by her that Building Inspector Linares alleged were made to him when he visited defendant Garcia's property. While the statements have been received in evidence, more is required to meet the burden of proof beyond a reasonable doubt. Per the charging instruments, Ms. Kercek allegedly claimed, "that there is a full apartment in the basement with kitchen, bathroom, bedroom and living room area." Ms. Kercek allegedly continued, stating, ""[T]wo friends of mine rents out the cellar. . . . They have a cellar with full kitchen, gas stove, sink and their own bath and one bedroom." Summons Nos. 5908, 5917, (Jan. 31, 2007). The prosecution would need evidence, including, but not limited to, testimony to the effect that construction, alteration and conversion of the lower level of the premises had, in fact, taken place, and some records, photographs or physical and visual observation to that effect to corroborate any such testimony. Here, the prosecution has provided alleged statements, that were ultimately contravened by the declarant witness during the course of the trial, to substantiate the claim that construction, alteration and conversion took place.
The Court declared Ms. Kercek to be a hostile witness, however, the prosecution was unable to impeach the witness for prior inconsistent statements since she denied making those statements, and there was no independent proof aside from the Inspectors that would establish those facts. If the prosecutor had a photo of the lower level showing a bed and measurements to reveal how much of the area is below grade, then sufficient proof might be made out.
In his post-trial memorandum, prosecutor Kraemer asserts, "Testimony received from Harrix Linares and Janet Kercek established that this area of the premises has been altered and converted to a kitchen and living space without a permit." Post Trial Memorandum from Dwight Kraemer, Esq., Village Attorney, Village of Westbury, at 2 (Aug. 5, 2007). However, without corroborating evidence such as the aforementioned, these alleged statements will not provide enough evidence to permit this Court to convict on this charge, especially since Ms. Kercek has recanted any corroborative statements alleged to have been made by her.
Accordingly, Summons No. 5908 charging Ms. Garcia with construction, alteration and conversion without a permit is appropriately dismissed.
B. Summons No. 590979-15BOccupancy without obtaining a Certificate of Occupancy (Basement Apartment) Here, neither investigator actually established that Paul Bonnie and Catalina were occupying the portion of the alleged cellar apartment in the house. The only evidence to convict on this charge is testimony from Harrix Linares, a building investigator, stating that Kercek told him that Paul Bonnie and Catalina lived in a cellar apartment. Neither investigator actually physically observed anyone living in the basement, or confirmed that anyone was living in the basement area, outside of the statements the building investigators allegedly received from Ms. Kercek during their trip to the property. Paul Bonnie and Catalina did not testify. No other alleged tenants testified.
Accordingly, Summons No. 5909 charging Ms. Garcia with occupancy without obtaining a Certificate of Occupancy is dismissed.
C. Summons No. 591079-15CConversion (Change of Use)
In the charging instrument, Summons No. 5910, issued on Jan. 31, 2007, Harix Linares asserts that Alba Garcia ". . . personally maintained conversion (change of use) of a single family dwelling into a two family dwelling without proper permits." The only information Linares provides to substantiate this charge is ". . . information of belief by Ms. Janet Kercek. . . . [that] there is a cellar apartment (gas stove, sink) bedroom (1) living room and bathroom. . . . people occupying the cellar apartment are non-family members, their names are Paul Bonnie and Catalina." Based on this conversation that Linares alleged took place between him and Ms. Kercek, and after ascertaining that there is a Certificate of Occupancy on file for the house for a single-family dwelling, Mr. Linares came to the conclusion that Alba Garcia converted the home into a two-family home without proper permits.
Building inspector Linares asserts that the individuals occupying the alleged cellar apartment are "non-family members." The term "non-family members," however, is not at all relevant or useful for our purposes of determining if there was a conversion to a two-family dwelling. The term is very arbitrary, and has no objective meaning or definition attached to it. On its face, it could be read to mean that the individuals are not related by blood, or by or through marriage. It is not legally relevant or useful for proving, beyond a reasonable doubt, that the property had been improperly and illegally converted from a single-family dwelling to a two-family dwelling when that testimony is conclusory and not based upon direct observations concerning the criteria or presumptions in our Code which serve to demonstrate illegal, multiple family occupancy. In fact, in McMinn v. the Town of Oyster Bay, the New York Court of Appeals struck down as unconstitutional a town ordinance that restricted a single-family dwelling to any number of persons related by blood, marriage, or adoption or to two persons not related, but both of whom are age 62 or older. 66 NY2d 544, 546-47 (1985). The Court maintained that the number of people living together and unrelated by blood may not be arbitrarily determined. See id. at 550. The Court continued, asserting that a key factor to be determined is whether the persons living in the home are doing so as a single family unit. See id. Furthermore, the Code of the Village of Westbury, Section 248-2, lays out very specific guidelines as to what constitutes a single-family dwelling. Even if prosecutor Kraemer had proven beyond a reasonable doubt that "non-family members" were living in the home, which this Court concludes he did not, the Code of the Village of Westbury holds that "non-family members" living in a home does not on its face prove that a home has been converted to a two-family home. Westbury, NY, Code § 248-2 (2007). The Village of Westbury has properly ensured that its ordinances are in conformity with the standards put forth in McMinn v. the Town of Oyster Bay, supra. The Code of the Village of Westbury Section 248-2, presumptively provides detailed guidelines regarding what does and does not constitute a single-family dwelling:
FAMILY "(1) One or more persons living together as a single and stable bona fide housekeeping unit so long as such persons together occupy and either own, lease or rent the whole of a separate building or dwelling unit in a family-like living arrangement as the functional and factual equivalent of a natural family and use all rooms and housekeeping facilities in common, and no more than one domestic or home health care or medical care worker; provided, however, that in any separate building or dwelling unit occupied by a family of four or fewer persons, there may be added no more than one boarder, roomer or lodger, and provided that in any family of three or fewer persons, there may be added no more than two boarders, roomers or lodgers, all as defined in this section. "(2) Any such number of persons shall not be deemed to constitute a "family" if: (a) Any one of such persons may not have lawful access to all parts of the separate building or dwelling unit; (b) Any one or more of such persons lease or rent any separate portion of such separate building or dwelling unit from any other person, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above; (c) Such persons shall occupy the separate building or dwelling unit as a boarding, rooming or lodging house, nursing or convalescent home, dormitory, fraternity or sorority house, hotel, motel or inn or other similar housing facility, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above. "(3) It shall be presumed that a separate building or dwelling unit is occupied by more than one family if any two or more of the following features may be found to exist on the premises by the Superintendent of Buildings or Code Enforcement Officer, unless it is otherwise rebutted by evidence presented to the Superintendent of Buildings or Code Enforcement Officer by the owner or resident of the separate building or dwelling unit that it is occupied by one family, all as defined in this section: (a) More than one mailbox, mail slot or post office address. (b) More than one doorbell or doorway on the same side of the separate building or dwelling unit. (c) More than one electric meter. (d) More than one gas meter. (e) More than one connecting line for cable television. (f) Separate entrances for separate portions of the separate building or dwelling unit. (g) Partitions or locked internal doors barring access between segregated portions of the separate building or dwelling unit, including bedrooms, except for the rooms of no more than one or two boarders, roomers or lodgers, as provided for in Subsection B(1) above. (h) Separate written or oral leases or rental agreements or the payment of rent for portions of the separate building or dwelling unit among its owner or residents, except for one or two boarders, roomers or lodgers, as provided for in Subsection B(1) above. (i) Two or more kitchens, each of which contain a range or oven and refrigerator and sink. "(4) The Superintendent of Buildings or Code Enforcement Officer shall make the determination as to the application of this definition of 'family' for the purposes of compliance with any provisions of this Zoning chapter and the New York State Uniform Fire Prevention and Building Code, based upon his or her inspection of the premises, any information he or she may receive from the residents thereof or any other persons or documentary, or any other written evidence as to the condition of the premises or the relationship and living arrangements of the residents, whether or not listed in Subsection B(3) above, in consultation with the Village Attorney, and the determination of the Superintendent of Buildings or Code Enforcement Officer shall be final, subject to review of or appeal to the Board of Appeals and judicial review as provided by law."
Id.
These presumptions have not been sufficiently proven in this case. Accordingly, this charge is dismissed.
D. Summons No. 591183-6C(2)Cellar used as habitable space
"Habitable space" is not defined in our Village Code, but Dwelling Standards are set forth in § 83-6. For example, "[e]very dwelling unit shall have at least 150 square feet of habitable floor space for the first occupant, plus 100 square feet of habitable floor space for each additional occupant." There is no evidence of measurements having been taken at the time the home was inspected and the summons issued.
A cellar may be used for storage and recreation. See Code § 83 where subd. C prohibits using cellar space as habitable space. A cellar is there defined as: "That space of a building that is partly or entirely below grade which has more than one-half of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building."
It should not be used as a sleeping area. There is insufficient proof in this record to show that this section has been violated. Accordingly, this charge is dismissed.
E. Summons No. 5912112-7Electrical work performed without a license
The prosecutor states in his post-trial memorandum, "Testimony was received from Janet Kercek to the effect that there had been work on the electrical lighting in the basement area of the house." Post Trial Memorandum from Dwight Kraemer, Esq., supra, at 3. The prosecutor continued, stating, "Therefore absent any testimony or documentary proof submitted by the Defendant to show that the work was performed by a licensed electrician, the People have proven this charge beyond a reasonable doubt." Id.
The only thing the People have proven beyond a reasonable doubt, with respect to this charge, is that there was no permit in William Melo's file to allow performance of any electrical work, other than that which was done at the time of the original construction of the house at 463 Franklin Street. Quite astonishingly, the prosecutor here has made the claim that the defendant should submit evidence that electrical work which he has failed to prove, beyond a reasonable doubt, was performed at all was performed by a licensed electrician! It appears that Mr. Kraemer would have this Court believe that the defense is obligated to submit proof demonstrating that work was performed by a licensed electrician, even if no work was, in fact, performed. See U.S. Const. Amend. V. Mr. Kraemer's statement is based on the presumption that because the Building Inspector alleged that Ms. Kercek told him electrical work on the lighting in the alleged basement area of the house was done, it in fact, was. However, Ms. Kercek's testimony during trial does not confirm that electrical work was conducted in the basement; rather, it is in direct contravention to statements Mr. Linares alleged Ms. Kercek made to him. What we have here is a classic he-said, she-said. In such an instance, in order to prove this charge beyond a reasonable doubt, the People would have to provide something further than the alleged statements made to the Building Inspector by Ms. Kercek. There needs to be some corroborating evidence. The People have failed to provide anything to corroborate what the Building Inspector alleges that Ms. Kercek told him. Therefore, the People have not proven this charge beyond a reasonable doubt, and Summons No. 5912 charging Ms. Garcia with having electrical work performed without a license, is accordingly dismissed.
F. Summons No. 5913112-9Electrical work without inspection Certificate of Compliance
Similarly, for the reasons stated, supra, this charge must also be dismissed.
G. Summons No. 5914184-4Plumbing without obtaining a license. (Basement/apartment/bathroom)
The prosecution asserts in its post-trial memorandum: "Harrix Linares testified that a gas stove was installed in the lower level of the premises." Post Trial Memorandum from Dwight Kraemer, Esq., Village Attorney, Village of Westbury, at 3 (Aug. 5, 2007). Yet, Harrix Linares never actually observed a gas stove installed in the lower level of the premises, because he did not enter the lower level of the premises at any time. Yet, the prosecution asserts in its post-trial memo that, "The Defendant has offered no testimony that the plumbing to install the stove was performed by her." Post Trial Memorandum from Dwight Kraemer, Esq., supra.
Similarly to the charges outlined above, prosecutor Kraemer is asserting that defendant is obligated to offer testimony establishing that plumbing work, which he has not proven beyond a reasonable doubt was conducted at all, was performed by her. To sustain a conviction, there needs to be some corroborating evidence. Again, prosecutor Kraemer has failed to provide anything to corroborate what the Building Inspector alleges that Ms. Kercek told him. Accordingly, Summons No. 5914 charging the defendant with plumbing without a license is dismissed.
H. Summons No. 5915184-7APlumbing without a permit
Regarding the charge of plumbing without a permit, the prosecution asserts in its post-trial memorandum: "William Melo testified that there were no other permits in the Building Department file other than those which were introduced into evidence. Therefore, the People have proven this charge beyond reasonable doubt." Post Trial Memorandum from DwightKraemer, Esq., supra.
Here, again, there was no observation by any building inspector of any stove installed in lower level of premises, or any evidence of any plumbing being conducted to install stove. Prosecutor Kraemer is asserting that defendant should produce a permit for plumbing which he has not proven beyond a reasonable doubt was conducted at all. Accordingly, Summons No. 5915 charging the defendant with plumbing without a permit is dismissed.
I. Summons No. 5916248-283Renting without obtaining a Permit
The testimony here is that there were tenants in the premises which was not occupied by Ms. Garcia, the owner. There was also testimony that the tenants contributed toward the payment of the mortgage. While not referred to as rent per se, the Court finds that this was rent under these circumstances and sustains that charge. The tenants' names do not appear on any note or mortgage and they receive no benefit for their contributions to the mortgage other than a place to stay. The owner can label this whatever she wishes, but as far as this Court is concerned, it is rent and the owner is renting without a required permit. The defendant is guilty of renting without a permit. Accordingly, the defendant and her counsel are directed to appear in this Court for sentencing on October 11, 2007 at 9:30 a.m.
This constitutes the decision and order of the Court.