Kessler v. Sherman

Margett, J.

On September 10, 1973, the petitioner, a part owner of property located at Hay Beach Point, Shelter Island, New York, directed the operation of a backhoe as it dredged a channel on the property and deposited the dredged material alongside. The petitioner had no formal permit for this activity; on November 8, 1973 an information was filed in the Shelter Island Justice Court by the Attorney-General charging that, from September 12, 1973, and continously thereafter, the petitioner had altered the state of a certain tidal wetland in the Town of Shelter Island and the area immediately adjacent thereto, without a State permit, in violation of the State Tidal Wetlands Act (Environmental Conservation Law, § 25-0202). Supporting depositions of two State Department of Environmental Conservation employees were also filed.

On December 26, 1973 another information was filed "in substitution of the first, again relating to violation of the State Tidal Wetlands Act on September 12, 1973, and continuously thereafter. Finally, on March 4, 1974, this second information was amended to its present form, in which it charges the petitioner with “altering the state of a certain tidal wetland and the area immediately adjacent” thereto, on September 10, 11 and 12, 1973 and continuously thereafter, without a State permit, in violation of the State Tidal Wetlands Act.

In the meantime, on November 26, 1973, a complaint had been filed in the Shelter Island Justice Court, charging the petitioner with having violated the Wetlands Ordinance of the Town of Shelter Island on September 10, 1973 by conducting operations on wetlands within the town without having obtained a permit issued by authority of the town board. After transfer of the town complaint to the Southampton Justice Court for trial, the petitioner was acquitted by Town Justice Kendrick, sitting without a jury, on April 23, 1974. The acquittal was apparently based on the petitioner’s defense that he had been given permission by the Town of Shelter Island to dredge the channel on Hay Beach Point.

When the People continued to press the second case against the petitioner for altering the same wetland at the same time, he brought this proceeding pursuant to CPLR article 78. The petitioner urged at the Special Term that, if the trial of the charges were to take place, he would be separately prosecuted for offenses based upon the same act or criminal transaction, in violation of his statutory and constitutional rights against double jeopardy (NY Const, art I, § 6; CPL 40.20). The Special Term disagreed and denied the petition. We affirm.

The New York State Tidal Wetlands Act is totally separate and distinct from the Town of Shelter Island’s Wetlands Ordinance, ordinance No. 24, as a matter of law, in that each offense contains an element which is not an element of the other offense; by reason of the foregoing, the trial of the petitioner under ECL 25-0101 et seq. will not result in double jeopardy.

The statute relevant to this matter is paragraph (b) of subdivision 2 of CPL 40.20. In pertinent part, that paragraph states that a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless (1) each of the offenses, as defined, contains an element which is not an element of the other, and (2) the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.

The facts before us fit within the purview of that statutory exception to the double jeopardy rule. The town prosecution was based upon acts committed only on wetlands, as they are defined in the town’s ordinance, whereas the State prosecution is based upon acts committed upon wetlands as they are defined in the State Tidal Wetlands Act, and areas adjacent thereto, which adjacent areas are not covered by the town ordinance. The elements of the offense in the State prosecution involve more than the failure to apply for a State permit. ECL 25-0202 creates a moratorium on alteration of the state of any tidal wetland, as defined in ECL 25-0103, or of areas immediately adjacent thereto, pending the completion of an inventory of such wetlands and the promulgation of land-use regulations, unless a permit is obtained from the State Commissioner. The State statutes set forth specific procedures and standards regarding applications for and grants of State permits. An applicant for a moratorium permit must make, among other things, a showing of hardship. The provision specifically states that any such moratorium permit shall be in addition to, and not in lieu of, any permits which may be required by any municipality within which a wetland may lie.

Thus, the prosecutions are not the same in law because they are based upon separate and distinct statutes, namely, ECL article 25 and the Shelter Island Wetlands Ordinance. The petitioner is being prosecuted for two different offenses based upon the same act or criminal transaction. Under the circumstances of this case, the second prosecution is not violative of any constitutional or statutory protection (see Matter of Klein v Murtagh, 44 AD2d 465, affd 34 NY2d 988). Accordingly, the second prosecution may proceed as it does not violate the petitioner’s rights against double jeopardy.