Muldoon, Getz & Reston

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The Trial of an Ordinance
Gary Muldoon
Muldoon & Getz
144 Exchange Boulevard
Rochester, New York
 

A local law or municipal ordinance may have penal sanctions. The following issues may arise in the enforcement of an ordinance.

Prosecutor

A town or village attorney may prosecute violations of local ordinances.

Application of CPL

The procedures set forth in the Criminal Procedure Law applicable to misdemeanors also apply to zoning law violations. Town Law § 268; Village Law § 20-2006. (While a parking ticket violation is not a criminal offense, the CPL has been held applicable. People v Wienclaw, 183 Misc 2d 727 (Justice Court 2000)).

Filing of accusatory instrument

After issuance of an appearance ticket for violation of an ordinance, if a proper accusatory instrument is not filed, the charge should be dismissed. People v Peak Carting, Inc, 11 Misc 3d 4 (App Term 2005).

Speedy trial

With a municipal ordinance, the prosecution must be ready for trial within 30 days. People v Vancol, 166 Misc 2d 93 (Justice Court 1995); cf. People v Kleber, 168 Misc 2d 824 (Justice Ct 1996). The statutes of limitations set forth in the CPL are applicable as well.

Administrative searches

An administrative search may be conducted of residential property for local code enforcement, or commercial business. The search may be valid if part of an administrative program unrelated to enforcement of criminal law. There are three criteria: a substantial governmental interest that informs the regulatory scheme pursuant to which the inspection is made; the warrantless inspection must be necessary to further the regulatory scheme; and the inspection program must provide a constitutionally adequate substitute for a warrant. People v Scott, 79 NY2d 474 (1992); cf. New York v Burger, 482 US 691 (1987).

Fourth Amendment

Violation of an ordinance may be the basis for a stop for Fourth Amendment purposes, or an arrest. See People v Taylor, 294 AD2d 825 (4th Dept 2002).

Constitutional challenges

An ordinance may be found unconstitutional. See, e.g., People v New York Trap Rock Corp., 57 NY2d 371 (1982) (void for vagueness).

Under the preemption doctrine, an ordinance may be invalid if a higher governmental authority has already legislated in the area, to the extent that the higher legislation has "occupied the field." Even if there is no express conflict between ordinance and statute, the ordinance is invalid. New York Constit art 9, § 2 (c); see People v DeJesus, 54 NY2d 465 (1981).

Where the constitutionality of a local law is challenged, notice must be given to the governmental entity. CPLR 1012. A strong presumption of constitutionality applies. McMinn v Town of Oyster Bay, 66 NY2d 544 (1985).

Jury trial

Where the ordinance is denominated as a misdemeanor, the defendant may not be entitled to a jury trial if the punishment is less than 15 days’ imprisonment. People v Bonnerwith, 69 Misc 2d 516 (Justice Ct 1972); Town Law §§ 135, 268; Village Law § 20-2006; Penal Law § 55.10(3)(a).

© 2012 by Gary Muldoon.