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People v. Linardos

Justice Court of the Village of Muttontown, Nassau County

July 27, 2017

The People of the State of New York,
v.
Pericles Linardos, Defendants.

          Thomas J. Mullaney, Esq., Leventhal, Mullaney & Blinkoff, LLP, for the People

          Anthony DeCarolis, Esq, for Defendant Pericles Linardos

          Joseph E. Macy, Associate Village Justice

         This matter is before this court pursuant to the order of the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts dated April 7, 2017 and which reversed the court's order, (Mass, J.) dated August 4, 2014, and which found the Defendant guilty after trial of violating seven counts of the Code of the Incorporated Village of Muttontown of permitting the cutting of an oak tree with a caliber of more than seven inches without a permit and which further denied, without a hearing, defendant's motion to dismiss the accusatory instrument on speedy trial grounds (C.P.L. 30.30). Pursuant to decision and order the Appellate Term remitted the matter to this court for a new trial and to afford the defendant the opportunity to make a written pretrial motion to dismiss the accusatory instrument on speedy trial grounds. On April 17, 2017 the defendant filed his motion with this court (the "Motion").

         Upon this Motion, the court has considered the decision and order of the Appellate Term for the 9th and 10th Judicial Districts dated April 7, 2017, the defendant's motion including, the affirmation of Anthony DeCarolis, Esq affirmed on April 13, 2017, the affidavit of defendant Pericles Linardos sworn to on April 13, 2017, and each of the exhibits annexed in support of the Motion and the defendant's memorandum of law in support of his motion. The court has further considered the affirmation in opposition of Thomas J. Mullaney, dated May 11, 2017 and the exhibits annexed thereto, together with the People's memorandum of law in opposition to the Motion. The court has further reviewed the file in this action and the decision and order of Judge Mass. dated August 4, 2014, with respect to the procedural history of this matter.

         The matter before the court on this Motion has an extended history in this heavily contested litigation. The court will set forth the history of this matter to the extent that it is necessary to a determination of the issues on this application.

         Defendant in this matter was charged with seven counts of violating Local Law 5 of 2006 of the Laws of the Incorporated Village of Muttontown as codified in Village Code 172-3A(1) in that it is alleged that the defendant permitted the cutting down of seven large oak trees without a permit.

         On February 14, 2013 the defendant appeared pro se before the Muttontown Village Justice Court, at which time he was arraigned before the Hon. Martin Kaminsky, Village Justice. The defendant contends that at the time of arraignment the People did not state that they were ready to proceed to trial. Nevertheless, the record reveals that the People did request that the Court schedule a trial date.

         THE COURT: How do you plead, guilty or not guilty?

         THE DEFENDANT: I would like to see it dismissed.

         THE COURT: What you are going to do is plead not guilty and talk to the prosecutor and see if you can convince them further or first about it. If so, then you will present a proposal to me.

         MS. PRICE: At this time the People would mark the matter for trial.

         THE COURT: You don't want to discuss it at all?

         MS. PRICE: There is no dismissal on this one.

         The Court than inquired of the defendant whether he desired to make a motion. In sum and substance, defendant advised the Court that he was moving to dismiss the accusatory instrument on the grounds that he was not properly served and upon the grounds that V.O. 172-3(A) does not require a permit for the cutting down of trees where necessary to address an imminent peril to life or property. (Decision and Order dated August ...


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