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In re Prince

Supreme Court of New York, First Department

May 21, 2013

In re Albert Prince, Petitioner-Appellant,
City of New York, Respondent-Respondent. Index 403135/11

Petitioner appeals from the judgment of the Supreme Court, New York County (Cynthia Kern, J.), entered March 9, 2012, denying the petition to annul the New York City Environmental Control Board's decision, dated October 27, 2011.

Steven Banks, The Legal Aid Society, (Steven B. Wasserman of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, (Janet L. Zaleon, Kristin M. Helmers and Ilyse Sisolak of counsel), for respondent.

Luis A. Gonzalez, P.J. Peter Tom John W. Sweeny, Jr. Rosalyn Richter, JJ.



On February 23, 2011, petitioner Albert Prince removed a single television antenna from the top of some curbside garbage bags, placed it in his vehicle, and drove away. Shortly thereafter, the New York City sanitation police pulled Prince over, and issued him a summons for unauthorized removal of residential recyclable material using a motor vehicle (see Administrative Code of City of NY § 16-118[7][b][1]). The summons carried with it a mandatory $2, 000 fine for a first offense (see Administrative Code § 16-118[7][f][1][i]). The police also impounded Prince's vehicle, which was not to be released until the fine and applicable storage fees were paid (see Administrative Code § 16-118[7][g][1]). In this appeal, Prince challenges the penalty as an excessive fine in violation of the state and federal constitutions. We agree and conclude that, under the specific facts of this case, the fine imposed is grossly disproportional to the gravity of the offense and must be vacated.

On the morning in question, a sanitation police lieutenant was patrolling in Brooklyn looking for individuals removing metal from recyclable trash placed out by homeowners. The lieutenant observed Prince take a television antenna made of recyclable metal, place it in his van, and drive away. Prince took the discarded antenna from the curb in front of a one or two-family house, where it was resting on top of black garbage bags. Prince is a carpenter and sculptor who belongs to a group of artists who use recyclable construction material for art installations at the Brooklyn Art Exchange. Prince believed that the antenna was garbage and intended to use it in his artwork.

After Prince drove away, the lieutenant activated the lights and siren on his vehicle and pulled Prince's van over. He issued Prince a $2, 000 Notice of Violation for "remov[ing] recyclable metal... from residential premise[s]" and placing it into his van, in violation of § 16-118(7)(f)(1)(i) of the Administrative Code. The lieutenant also instructed Prince to relinquish the keys to the van, and impounded the vehicle pending payment of the $2, 000 fine. Prince was unable to continue working because he needed the van for his carpentry job. On March 23, 2011, a month after the incident and while the vehicle was still under impoundment, a hearing was held before an Administrative Law Judge of the Office of Administrative Trials and Hearings. After taking testimony from the lieutenant and Prince, the Judge sustained the violation, finding that Prince "removed [a] metal antenna from [the] location and placed it in his vehicle, intending to use it for his artwork." [1] The Judge found both the lieutenant and Prince credible, but concluded that Prince's testimony did not establish any valid defense to the charge. Concluding that she had no discretion to reduce the penalty, the Judge imposed the mandatory $2, 000 fine.

Prince appealed the decision to the New York City Environmental Control Board (ECB) contending, inter alia, that the mandatory $2, 000 penalty enforced by vehicle impoundment was an unconstitutionally excessive fine [2]. By decision dated October 27, 2011, the ECB upheld the Notice of Violation and the $2, 000 fine, concluding that it lacked the authority to rule on the constitutional issue. Prince then commenced the instant article 78 proceeding against respondent City of New York contending that the fine was unconstitutionally excessive, and that his due process rights were violated because he did not receive a prompt hearing. The petition sought vacatur of the $2, 000 fine and return of the $500 storage fee. In a judgment entered March 9, 2012, Supreme Court denied the petition and dismissed the proceeding, finding no constitutional violations. Prince now appeals. [3]

Section 16-118(7)(b)(1) of the Administrative Code provides that, except for authorized employees of the Department of Sanitation, "it shall be unlawful for any person to disturb, remove or transport by motor vehicle any amount of recyclable materials that have been placed by owners... of residential premises... adjacent to the curb line... for collection or removal by the [sanitation] department unless requested by the owner." Section 16-118(7)(f)(1)(i) provides that anyone who violates this provision using a motor vehicle shall be assessed a $2, 000 fine for the first offense. The statute does not allow for the discretionary imposition of any lesser penalty. In addition, any motor vehicle used to commit the violation must be impounded by the sanitation department and not be released until the fine, along with storage fees, has been paid, or a bond posted (Administrative Code § 16-118[7][g][1]).

The New York City Council enacted these provisions to provide harsher penalties for those who use motor vehicles to remove recyclable materials from the curbside. Previously, the maximum fine for violators was $100. The legislative history of the current law indicates that the City Council did not believe the $100 fine was a sufficient deterrent to those individuals who appropriate recyclables and sell them for financial gain (see Rep of Comm on Sanitation and Solid Waste Management, 2007 NY City Legis Ann, at 318). The Council was concerned that trucks with out-of-state license plates were taking recyclables from curbsides the evening before the regular sanitation department pickup, thereby depriving the City of recycling revenue (id.).

Thus, the Council's intent in passing the statute was to prevent people from making "a quick profit [from] tak[ing] recyclable materials in large quantities" (id. at 320; see also Testimony of Sanitation Director of Enforcement Todd Kuznitz, Sep 25, 2007 Hearing of the Comm on Sanitation and Solid Waste Management, at 12 [legislation aimed at those removing recyclables "for commercial purposes, for serious business reasons, and in great bulk"]; Statement in support of legislation by The Natural Resources Defense Council, Inc. ["legislation is targeted at commercial enterprises that are stealing recyclables on a high-volume basis and in a business context"]). Indeed, at the City Council hearing on the proposed law, several Council members expressed concerns about the potential sweep of the proposed $2, 000 fine, suggesting that such a penalty would be excessive if imposed on individuals taking items for personal use (Sep 25, 2007 Hearing of the Comm on Sanitation and Solid Waste Management, at 10-12). Despite these reservations, and the stated intent of the legislation, the statute, as enacted, applies broadly to individuals who take "any amount" of recyclable materials, no matter how small (Administrative Code § 16-118[7][b][1]).

It is undisputed that Prince violated the relevant Administrative Code provision — he removed and transported a recyclable object using a motor vehicle. Nevertheless, under the specific circumstances here, we conclude that the mandatory $2, 000 penalty amounts to an unconstitutionally excessive fine.

The Eighth Amendment of the United States Constitution forbids the imposition of "excessive fines." The New York State Constitution contains the same prohibition (art I, § 5). The Excessive Fines Clause " limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense''" (County of Nassau v Canavan, 1 N.Y.3d 134, 139 [2003], quoting Austin v United States, 509 U.S. 602, 609-610 [1993]). A fine is unconstitutionally excessive if it "notably exceeds in amount that which is reasonable, usual, proper or just" (People v Saffore, 18 N.Y.2d 101, 104 [1966]). Thus, the Excessive Fines Clause is violated where the fine is "grossly ...

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