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The People of the State of New York v. Walter Gezari

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


July 27, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
APPELLANT,
v.
WALTER GEZARI,
RESPONDENT.

Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Deborah Kooperstein, J.), rendered December 15, 2009. The order granted defendant's motion to dismiss three accusatory instruments.

People v Gezari (Walter)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2011

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

ORDERED that the order is reversed, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.

Defendant was charged in three separate accusatory instruments with violating Riverhead Town Code § 108-62 (failure to have a special permit), § 108-73 (A) (failure to have a use permit) and § 108-130 (failure to have a site plan), respectively. The violation charged in each accusatory instrument was based on an allegation that defendant was using property he owned as an "airport," which term is defined in Riverhead Town Code § 108-3 (B) as "any landing area regularly used by aircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraft being used for personal or training purposes."

Defendant moved to dismiss the accusatory instruments on the grounds that they were facially insufficient (CPL 170.30 [1] [a]; 170.35 [1] [a]) and that there existed a legal impediment to conviction (CPL 170.30 [1] [f]), as Riverhead Town Code § 108-3 (B) was unconstitutionally vague on its face. The People opposed the motion, and the Justice Court granted defendant's motion in its entirety.

The accusatory instruments, as supplemented by the documentation annexed thereto, are facially sufficient, as they contain factual allegations which provide reasonable cause to believe that defendant was using his property as an airport without obtaining the approvals required under the Town Code of Riverhead and, if true, establish every element the charged offenses (see CPL 100.40 [1] [b], [c]). The allegations are also sufficiently evidentiary, as well as adequately detailed, to enable defendant to prepare a defense and to prevent his reprosecution for the same crimes (see People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225, 230 [2009]).

Having determined that the instruments were facially sufficient, we therefore reach defendant's contention that the ordinance was unconstitutionally vague (see People v Felix, 58 NY2d 156, 161 [1983]). An ordinance is unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited or it is written in a manner that permits or encourages arbitrary or discriminatory enforcement (see People v Taylor, 9 NY3d 129, 151 [2007]; People v Stuart, 100 NY2d 412, 420 [2003]). Imprecise language does not render an ordinance fatally vague so long as the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practices (see People v Shack, 86 NY2d 529, 538 [1995]). While the definition of "airport," as set forth in the Riverhead Town Code may be somewhat "ambiguous" (Town of Riverhead v Gezari, 63 AD3d 1042 [2009]), when measured by common understanding and practices, the ordinance provides a person of ordinary intelligence fair notice of the conduct prohibited, and officials with clear standards for enforcement. We therefore find that the ordinance is not unconstitutionally vague.

Accordingly, the order is reversed, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: July 27, 2011

20110727

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