Opinion
XXXXX
08-13-2018
The People of the State of New York, Plaintiff, (VILLAGE OF BELLPORT) v. Robert Hermus, , Defendant.
Appearances by counsel: Deirdre Cicciaro, Assistant Village Attorney for the Village of Bellport; J. Lee Snead, Esq. for defendant Robert Hermus.
Appearances by counsel: Deirdre Cicciaro, Assistant Village Attorney for the Village of Bellport; J. Lee Snead, Esq. for defendant Robert Hermus.
A motion dated November 15, 2017 having been filed with this Court requesting that the Information and pleadings filed with the court against the above-named defendant be dismissed; an Affirmation in Opposition of Motion to Dismiss having been filed with this court thereafter; and an Affirmation in Reply having been filed with this court, and upon reading the motion papers both in support of the motion and against it, this court held a hearing to allow the Village Prosecutor and defense counsel to supply oral argument or additional clarification of their evidence. Thereafter, this court allowed both counsel additional time to provide any further evidence, case law, or documentation they wished the court to consider. This court received the prosecutor's sur-reply papers and appended documents, and a Rejoinder Affirmation on the Motion to Dismiss on behalf of the defendant.
The defendant was charged with six (6) violations of the Code of the Village of Bellport- three violations of §11-60, and three (3) violations of §11-61 alleging in sum that he failed to pay the $65.00 fee or possess the residence sticker for his boat while docked at Ho Hum Beach, and that he failed to leave the marina with his boat as required by the 2017 Bellport Village Resident Dock Policy on three separate dates.
Defendant now moves this court pursuant to CPL §§ 170.30(f), 170.35(b), and 255.10(1) for a dismissal order arguing that Bellport Village does not own the waters or dock where the incident is alleged to have taken place, and therefore lacks geographic jurisdiction to proceed with the charges. In support of his argument, defendant's submissions include copies of the tickets, the subsequent information pleadings, and a copy of the "Petition and Order to Show Cause" which contains the petition and supporting papers for the incorporation of the Incorporated Village of Bellport, Town of Brookhaven, County of Suffolk, and State of New York.
The Prosecution's submissions in opposition include their affirmation and copies of the lease between the Village of Bellport and the Town of Brookhaven of the underwater lands adjoining Ho Hum Beach for a period of ten years with the option to extend the lease for subsequent 10-year periods.
It is axiomatic that the court's authority to hear or adjudicate any case lies with whether the court has jurisdiction over the matter. CPL §§ 20.40 (1), 20.50 (2) and NYS Village Law §§20-2000, 2-2000 provide the mechanism for which a village may prosecute violations of its ordinances. Defendant argues that the Village of Bellport may only enforce and prosecute violations of its Village Code that occur within its geographic boundaries. The Prosecution avers that by virtue of Village Law §6-624, the Village of Bellport caused a de facto extension of the Village's geographic boundaries such that it could enforce its local laws within the bounds of Ho Hum Beach and the Ho Hum Marina, and as such this court has jurisdiction to hear the case. In addition, the Prosecution argues that Navigation Law §§ 45-b and 46-a, coupled with Town Law §130(17), provides another mechanism by which the Village obtains geographic jurisdiction for the limited purpose of regulating beaches, vessels and anchorages and moorings.
However, Navigation Law §§ 45-b and 46-a are inapplicable here, as they govern the conduct of swimmers, divers or vessels located 1500 feet from shore. Ho Hum Beach is located more than two miles away from the contiguous village lines. Moreover, these sections of law were not adopted until 1972, and thus are inapplicable to the area since it was given to the Village in 1970, as set forth in the lease between the Town of Brookhaven and the Village of Bellport, prior to the law's enactment.
The Village of Bellport purchased Ho Hum Beach in 1963, for the purpose of it being a "public park" as prescribed in Village Law §6-624. While this court has reviewed the lease between the Village of Bellport and the Town of Brookhaven that sets forth the Village's acquisition of the underwater lands adjoining Ho Hum Beach, this court has not received any such documentation that the Village of Bellport properly annexed the land to expand its geographic boundaries as required by Article 17 of the General Municipal Law.
The Municipal Annexation Law is embodied within the New York State Constitution, Article IX, §1, the Bill of Rights for Local Governments. Article 17 of the NYS General Municipal Law, known as the "Municipal Annexation Law," sets forth the procedural steps to be followed when a municipality seeks to acquire territory lying within the boundaries of an adjacent municipality (see, Town Bd . Of the Town of Parma v Bd. Of Trustees of Vill. of Hilton , 69 AD3d 117, 118, 888 NYS2d 332 [4th Dept 2009]; Matter of City Council of City of Waterlivet v Town Bd. Town of Colonie , 3 NY3d 508, 513-514, 789 NYS2d 88, 2004]). There is no dispute that Ho Hum Beach is not within the contiguous boundaries of the Village of Bellport, that Ho Hum Beach was purchased by the Village in 1963, and that the underwater land area adjacent to Ho Hum Beach was leased by the Village from the Town of Brookhaven in 1970. However, there has been no evidence proffered to the court documenting whether the annexation of the lands in question outside the Village's boundaries were properly annexed to the Village of Bellport.
As the Court of Appeals set forth in Matter of City Council of City of Mechanicsville v Town Bd. Of Town of Halfmoon , 27 NY2d 369, 318 NYS2d 307 [1971], "the power to effect an annexation of land is largely a matter controlled by statute and constitutional provisions." There has been no proof of annexation of the Ho Hum Beach and marina areas, as required by statute, submitted to this court. Accordingly, this court lacks the requisite jurisdiction to hear the violations against this defendant.
Now, upon careful examination and consideration of the motion papers, supporting affirmations, and evidence presented, it is hereby ORDERED that the defendant's motion to dismiss is hereby granted in its entirety and the information and pleadings filed with the court against the defendant enumerated within are hereby dismissed. Dated: August 13, 2018 ______________________________ Kerri N. Lechtrecker, Associate Village Justice, Bellport Village