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[T] People v. Ventura5/6/2004
prior to September first, nineteen hundred seventy-four is hereby declared to be an offense, punishable by a fine not exceeding three hundred fifty dollars or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine not less than three hundred fifty dollars nor more than seven hundred dollars or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than seven hundred dollars nor more than one thousand dollars or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of such zoning ordinance shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
This peculiar enactment provided that a violation of a zoning code is declared to be an offense but deemed to be misdemeanors for jurisdictional purposes. Thus, it has little application here since this Court does not have jurisdiction over misdemeanors. But, in this County, it does allow the District Court to assume jurisdiction over a zoning or building matter if it is deemed to be a misdemeanor. Essentially, this permits our District Court to have jurisdiction over building code violation cases which occur in the unincorporated areas of our Towns. The Town attorneys in the three Towns in Nassau County may then prosecute these cases in the District Court.
In People v. Musante, 141 Misc.2d 300, 532 N.Y.S.2d 1015 (1988), the Court held that defendants charged with housing more than two families in their home in violation of the Village zoning ordinance were entitled to a jury trial, although the ordinance defined such violation as disorderly conduct, since (1) zoning code violations are designated as misdemeanors for judicial purposes, pursuant to Village Law § 20-2006 (1-a) and (2). CPL § 340.40 provides that outside New York City a defendant charged with a misdemeanor must be accorded a jury trial. This Court has no facilities for a jury trial. This Court interprets this section to provide for jurisdiction over zoning case misdemeanors as conferring jurisdiction in our District Court where the trial by jury and other requirements may be met.
In an advisory opinion by the New York State Attorney General, 85-10, it was determined that in the event a village has made a violation of its laws or regulations, a violation of the New York State Penal Law, a village may issue search warrants upon application of a building inspector to enable inspections of buildings by police officers. While this Court does not suggest by this opinion that the Village has the authority to enact misdemeanors, in this case it has not attempted to make this law, by reference, merger or incorporation, a violation of the New York State Penal Law and the search warrant in this case was executed by the Building Department with police officers.
Arguably in this Village our Zoning Code, prior to recent amendments, provided for jail sentences of up to six months for some zoning violations. Some have argued that such potential penalties render the charges an unclassified misdemeanor due to the length of the possible incarceration. This Court agrees and provides that jail penalties of up to six months for offenders, if they exist, are illegal and unconstitutional even if they are not specifically ch
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