SUPREME COURT, APPELLATE TERM RULING
Decided on April 9, 2015

 

 
     

 

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Decided on April 9, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

 

PRESENT: : TOLBERT, J.P., MARANO and GARGUILO, JJ.

2013-567 S CR

The People of the State of New York, Respondent,

 

against

 

Hunter Sports Shooting Grounds, Inc., Appellant.

 

Appeal from a judgment of the District Court of Suffolk County, Sixth District (James P. Flanagan J.), rendered December 10, 2012. The judgment convicted defendant, after a nonjury trial, of violating Brookhaven Town Code 50-5 (A).

ORDERED that the judgment of conviction is affirmed.

In 2009, more than 25 accusatory instruments were filed against defendant,[FN1] alleging that defendant had violated the noise control ordinance set forth in Brookhaven Town Code 50-5 (A). Insofar as is relevant to this appeal, defendant, which operates a shooting range, went to trial on the charge contained in the accusatory instrument for docket No. 09-1756, which states, in part, as follows:

"To wit: On the 20th day of June 2009 at approximately 12:26pm, the defendant Suffolk County Trap and Skeet occupied at Gerard Road, Hamlet of Yaphank, Town of Brookhaven, County of Suffolk, State of New York. On this date your deponent was at the 112 Gerard rd. Yaphank, Hamlet of Yaphank, Town of Brookhaven, County of Suffolk, State of New York and measured noise levels of 69 dBA coming directly from the defendant's property. The noise was coming from gunshots emanating from the defendant's property."

Prior to the commencement of this action, defendant (or "the range"), in January 2007, brought suit in the Supreme Court for a judgment declaring that the actions of the Town of Brookhaven (Town), among others, in enforcing the Town's noise ordinance against defendant are unconstitutional. The declaratory judgment complaint alleged, among other things, the following causes of action: (1) the range, which was in operation for more than 25 years before the Town's noise ordinance was enacted, is exempt from enforcement of the ordinance against it [*2]as a prior nonconforming use; (2) enforcement of the Town's noise ordinance against the range amounts to an unlawful confiscation; (3) enforcement of the Town's noise ordinance against the range amounts to an unlawful taking; (4) enforcement of the Town's noise ordinance against the range violates its due process rights; (5) since the Town's noise ordinance conflicts with the subsequently enacted County of Suffolk (County) noise ordinance, which specifically exempts the range, the Town's noise ordinance cannot be enforced against the range due to public interest immunity; (6) enforcement of the Town's noise ordinance against the range impermissibly impairs the powers of the County, and, thus, is an improper exercise of the Town's police powers under the Municipal Home Rule Law, and is preempted under the New York State Constitution; and (7) since the activities which create noise at the range take place on a public space and/or constitute an event sponsored by the municipality, the range is entitled to an exemption under Brookhaven Town Code 50-6 (A) and 50-7 (B). The Town moved for, among other things, summary judgment dismissing the complaint in the declaratory judgment action, and the range cross-moved for summary judgment in its favor on the first, second, third and sixth causes of action. By order dated January 30, 2009, the Supreme Court (Gary J. Weber, J.), among other things, denied the range's cross motion and, sua sponte, dismissed the declaratory judgment action in its entirety, stating that the resolution of the matter should be left to the discretion of the District Court.

In December 2009, in the District Court proceeding, defendant filed an omnibus motion in which it moved for, among other things, dismissal of the accusatory instruments and for a stay pending the determination of its appeal of the January 30, 2009 Supreme Court order. By order dated May 12, 2010, the District Court (Stephen L. Ukeiley, J.) granted defendant's motion to the extent of staying the trial pending a final determination of the appeal. Also in May 2010, the Appellate Division reversed the January 30, 2009 Supreme Court order (Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702 [2010]) and remitted the matter to the Supreme Court for further proceedings. Additional orders were issued by both the District Court and Supreme Court.

By order dated June 21, 2012, the Supreme Court (Joseph Farneti, J.), among other things, denied the Town's motion for summary judgment dismissing the declaratory judgment action, as well as the branches of the range's cross motion seeking summary judgment in its favor on its first, second, third, fifth and sixth causes of action (Hunter Sports Shooting Grounds, Inc. v Foley, 2012 NY Slip Op 31721[U] [Sup Ct, Suffolk County 2012]). The Supreme Court noted that, in a prior order, it had found that the Town's noise ordinance was a reasonable exercise of its police power and, thus, that a prior nonconforming use is not immune from the ordinance. The court held that the Town's noise ordinance does not violate the Municipal Home Rule Law since the Town has the authority to adopt a noise ordinance which imposes criminal liability upon violators and the County's noise ordinance cannot impair the Town's noise ordinance; and that the range's confiscation and taking arguments were not ripe for review.

A nonjury trial was subsequently held in the District Court, at which the defense presented no witnesses. Following the completion of the People's case, defense counsel moved to dismiss the accusatory instrument "on the grounds set forth in the [pretrial] motion to dismiss." The motion was denied. On December 10, 2012, defendant was found guilty of violating Brookhaven Town Code 50-5 (A), and was sentenced to a $50 fine.

By decision and order dated August 27, 2014, the Appellate Division affirmed the June 21, 2012 Supreme Court order (Hunter Sports Shooting Grounds, Inc. v Foley, 120 AD3d 759 [2014]). In regard to the range's confiscation and taking arguments, the Appellate Division held that the range failed to meet its prima facie burden of establishing that the enforcement of the Town's noise ordinance against the range results in an unlawful confiscation or an unlawful taking.

On this appeal from the December 10, 2012 judgment of conviction, defendant contends that the District Court improperly denied its motion to dismiss the accusatory instrument because the enforcement of the Town's noise ordinance violates the Municipal Home Rule Law by [*3]impairing the County's power to regulate its own property (the sixth cause of action in the declaratory judgment complaint); that the range was exempt from enforcement of the Town's noise ordinance as a prior nonconforming use (the first cause of action therein); that the enforcement of the Town's noise ordinance would be an unlawful confiscation (the second cause of action therein) and an unlawful taking (the third cause of action therein); and that its motion to dismiss should have been granted in the interest of justice.

We note that the arguments defendant made, and the exhibits defendant provided, in support of its District Court motion for dismissal of the accusatory instrument and for a stay are the same it made, and provided to, the Supreme Court and Appellate Division in support of its cross motion for summary judgment in the declaratory judgment action. As the Appellate Division's August 27, 2014 decision and order affirming the Supreme Court's June 21, 2012 order (Hunter Sports Shooting Grounds, Inc. v Foley, 120 AD3d 759) decided the constitutional challenges defendant raises in the instant appeal, that decision and order controls. Thus, we find that the District Court properly denied the branches of defendant's motion seeking dismissal of the accusatory instrument on the aforementioned constitutional grounds.

Defendant also contends, on appeal, that dismissal of the accusatory instrument is warranted in the interest of justice. An accusatory instrument may be dismissed in the interest of justice, pursuant to CPL 170.30 (1) (g), even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (f) of CPL 170.30 (1), where "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice" (CPL 170.40 [1]). It is well settled that " '(t)he discretionary authority to dismiss . . . in furtherance of justice . . . should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution . . . would be an

injustice' " (People v Graham, 39 Misc 3d 35, 37 [App Term, 2d, 11th & 13th Jud Dists 2013], quoting People v Candelaria, 50 AD3d 913, 913 [2008]; see also People v Schellenbach, 67 AD3d 712, 713 [2009]; People v Richman, 44 Misc 3d 34, 36-37 [App Term, 9th & 10th Jud Dists 2014]).

Applying the factors set forth in CPL 170.40 (1) (a) through (j) to the relevant facts herein, including "a sensitive balancing of the interests of the individual against the competing interests of the public" (People v Debiasi, 160 AD2d 952, 953 [1990]), we find that the case for dismissal of the accusatory instrument in the interest of justice is not so compelling "as to warrant the court's circumventing the prosecutorial discretion of the People" (People v McAteer, 36 Misc 3d 159[A], 2012 NY Slip Op 51814[U], *2 [App Term, 9th & 10th Jud Dists 2012]; see People v McConnell, 11 Misc 3d 57, 62 [App Term, 9th & 10th Jud Dists 2006]; see also People v Richman, 44 Misc 3d at 37).

Accordingly, the judgment of conviction is affirmed.

Tolbert, J.P., Marano and Garguilo, JJ., concur.

Decision Date: April 09, 2015

Footnotes

 

 

Footnote 1:The defendant named in the accusatory instruments was "Suffolk Trap and Skeet & Sporting Clays," which name was subsequently amended to Hunter Sports Shooting Grounds, Inc.

 

 
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