Opinion
2013-2031 P CR
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Russell NOGA, Appellant.
Craig T. Bumgarner, P.C., Carmel (Ellen A. Faulkner of counsel), for appellant. Timothy J. Curtiss, P.C., Carmel (Timothy J. Curtiss of counsel), for respondent.
Craig T. Bumgarner, P.C., Carmel (Ellen A. Faulkner of counsel), for appellant.
Timothy J. Curtiss, P.C., Carmel (Timothy J. Curtiss of counsel), for respondent.
Opinion
Appeal from a judgment of the Justice Court of the Town of Kent, Putnam County (Kevin L. Douchkoff, J.), entered July 17, 2013. The judgment convicted defendant, after a nonjury trial, of parking a prohibited commercial vehicle in a residential district. The appeal from the judgment of conviction brings up for review an order of the same court dated December 20, 2012 which denied defendant's motion to dismiss the accusatory instrument.
ORDERED that the judgment of conviction is reversed, on the law, the order dated December 20, 2012 is vacated, defendant's motion to dismiss the accusatory instrument is granted, and the fine, if paid, is remitted.
On June 14, 2012, the People charged defendant, in an information, with violating section 77–38(D)(2) of the Code of the Town of Kent (Code) in that, on that date, he “park[ed] a prohibited commercial vehicle outdoors” at his residence, namely, a 2010 Ford dump truck registered to defendant at his residential property. Section 77–38, which contains a subdivision bearing the title “Prohibited Parking,” states, in pertinent part:
“(D)(2) Not more than one commercial vehicle, excluding construction equipment, may be parked on any lot in a residential district, provided that no such vehicle shall have more than four wheels ...” (emphasis added).
Defendant moved to dismiss the accusatory instrument, arguing, among other things, that the ordinance's expression “excluding construction equipment” is unconstitutionally vague on its face. By order dated December 20, 2012, the Justice Court denied the motion. After a nonjury trial, the court convicted defendant of the charge.
On appeal, defendant argues that Code § 77–38(D)(2) is unconstitutionally vague on its face in that it fails to provide adequate notice as to what constitutes a violation. We agree.
A vagueness challenge to a zoning ordinance requires the application of a two-pronged test, to determine first, whether the ordinance “provide[s] sufficient notice of what conduct is prohibited,” and second, whether it is “written in such a manner as to permit or encourage arbitrary and discriminatory enforcement” (People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355 1988 ). “[A] facial challenge requires the court to examine the words of the statute on a cold page and without reference to the defendant's conduct” (People v. Stuart, 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 2003; see e.g. People v. Peak Carting, Inc., 11 Misc.3d 4, 8, 812 N.Y.S.2d 218 [App.Term, 9th & 10th Jud.Dists.2005] ). To be facially constitutional, the statute need provide “only a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of [its] terms' ” (Dua v. New York City Dept. of Parks & Recreation, 84 A.D.3d 596, 598, 924 N.Y.S.2d 47 2011, quoting Foss v. City of Rochester, 65 N.Y.2d 247, 253, 491 N.Y.S.2d 128, 480 N.E.2d 717 1985; see also People v. Scott, 26 N.Y.2d 286, 291, 309 N.Y.S.2d 919, 258 N.E.2d 206 1970 ), and clear standards for those charged with enforcing the law (see People v. Stuart, 100 N.Y.2d at 420–421, 765 N.Y.S.2d 1, 797 N.E.2d 28 [“If a statute is so vague that a potential offender cannot tell what conduct is against the law, neither can (those charged with enforcing it). A vague statute impermissibly delegates basic policy determinations to (the enforcers) ... ‘for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application’ ”], quoting Grayned v. City of Rockford, 408 U.S. 104, 108–109, 92 S.Ct. 2294, 33 L.Ed.2d 222 1972 ).
The term “construction equipment” is amenable to a commonsense understanding (see McKinney's Cons. Laws of N.Y., Book 1, Statutes § 94 [“statutory language is generally construed according to its natural and most obvious sense”]; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 477, 982 N.Y.S.2d 813, 5 N.E.3d 976 2013 ). Apparently construing the reference to such equipment in section 77–38(D)(2) to mean that parking construction equipment in the specified locations is a per se violation of the ordinance, the People alleged, in the accusatory instrument, as the factual basis of the violation, that defendant parked a dump truck on his property. However, as the phrase “excluding construction equipment,” in the context of the ordinance, can as readily be construed to state a complete exception to the parking prohibition set forth in section 77–38(D)(2) where construction equipment is concerned (see People v. Santana, 7 N.Y.3d 234, 818 N.Y.S.2d 842, 851 N.E.2d 1193 2006 ), the ordinance is unconstitutionally vague. “In determining the sufficiency of ... notice[,] a statute must of necessity be examined in the light of the conduct with which a defendant is charged” (United States v. National Dairy Prods. Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 9 L.Ed.2d 561 1963 ), and, here, it does not provide “adequate warning” as to “the nature of the offense prohibited” (matter of mitchell v. fiscHer, 300 a.d.2d 490, 490, 752 n.y.s.2d 97 2002 ).
Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine, if paid, is remitted.