Long Island Town and Village Code: Have you ever been charged with violating the “code”? Has code enforcement tried to enter your home? You can and should refuse entry without a warrant. Throughout Long Island, code enforcement by incorporated villages and towns often result in (some very valid) criminal charges for violating the “code.” This can be anything from converting a garage to living space or not mowing the lawn. Here, the defendant was accused an convicted of “violating section 275-5 of the Code of the Town of Southold, in that he had constructed “stairs within 100′ of the bluff line without a permit from the Board of Trustees.”
The case is The People v. Martino, 2013-2134 S CR, NYLJ 1202741291489, at *1 (App. Tm., 2nd, Decided September 18, 2015) and Section 275-5 (A) of the Code of the Town of Southold provides that “[n]otwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (§275-3C) [sic] without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect.”
In specifying the provisions which the Defendant here supposedly violated, Section 275-3 (C) of the Code of the Town of Southold provides that “Land within 100 feet of the [bluff]” is protected under Section 275-5(A). The Town of Southhold brought these charges yet never determined whether the stairs that Martino erected were actually within 100 feet of a bluff. Defendant went to trial where a judge sat in judgment of the law and the facts. After being convicted, the defendant put several arguments forward on appeal. The Appellate Court, however, evaluated the evidence poised against Martino and determined that it was not legally insufficient:
The testimony of a bay constable was aided by the admission into evidence of three photographs of the stairs in question. However, the bay constable never testified where the bluff line was on the photographs. He never testified that the stairs were on land within 100 feet of a bluff. The bay constable merely “guess[ed]” that the stairs were within the jurisdiction of the Board of Trustees. The Chairman of the Town of Southold Board of Trustees, who was a witness for the prosecution, never testified that the incline arising from the beach on defendant’s property on which the stairs were located was steep enough to constitute a bluff. His testimony as to where the bluff line was on defendant’s property was based on an approximation. While he testified that “[w]etland jurisdiction is one hundred feet of vegetation wetland and fresh water wetland is also one hundred [feet] from the wetlands,” he never specifically testified that the stairs were within 100 feet of a bluff. The photographs merely show stairs going from the rear of a property to the beach and the sound. They do not contain any measurements. Thus, defendant’s conviction of violating Section 275-5 of the Code of the Town of Southhold was based on legally insufficient evidence.
Conviction overturned: the appeal was successful. This is an important reversal because of the number of these criminal charges brought which are sometimes without merit and the result if challenged. If the Defendant had merely plead guilt, it is likely the Defendant would have to remove these stairs and paid a hefty fee and/or fine in doing so. By hiring an attorney and fighting the charges, Martino keeps the stairs and does not have to pay the $4,000 fine….
The Defendant was sentenced in April, 2012. As part of a plea agreement, the Defendant was sentenced to a seventy-eight month term of imprisonment. The instant matter is to decide the defendant’s motion to reduce the sentence.
History: “Pursuant to the United States Sentencing Guidelines Manual (“the Guidelines”) effective at the time of defendant’s sentencing, defendant’s base offense level was twenty-six (26). See U.S.S.G. §2D1.1. Four (4) points were added to the base offense level to determine the combined offense level pursuant to §3D1.4(a) of the Guidelines, but the combined offense level was reduced by three (3) levels based upon defendant’s acceptance of responsibility pursuant to §3E1.1 of the Guidelines, thereby placing defendant at a total offense level of twenty-seven (27) at the time of his sentencing. Since defendant’s criminal history placed him in Criminal History Category II, the then-applicable advisory Guidelines range was a term of imprisonment of between seventy-eight (78) to ninety-seven (97) months, the range stipulated in the plea agreement.” Pp. 2-3.
The defendant moves to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2), which provides, in relevant part:
“The court may not modify a term of imprisonment once it has been imposed except that — *** in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant * * *, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pp. 2-3.
Law: The Supreme Court has held that “[b]y its terms, §3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683, 2690, 177 L. Ed. 2d 271 (2010); see also U.S. v. Johnson, 732 F.3d 109, 116 (2d Cir. 2013) (holding that a Section 3582(c)(2) proceeding is “neither a sentencing nor a resentencing.”) Since Section 3582(c)(2) authorizes “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding,” Dillon, 560 U.S. 817, 130 S. Ct. at 1391, the sentencing court is not “free to address * * * arguments regarding [other] errors at [the defendant’s] original, now final sentencing.” U.S. v. Mock, 612 F.3d 133, 134-35 (2d Cir. 2010).
“The Supreme Court has set forth a ‘two-step inquiry’ for resolving motions pursuant to §3582(c)(2) for a sentence reduction.” U.S. v. Christie, 736 F.3d 191, 194 (2d Cir. 2013) (citing Dillon, 560 U.S. 817, 130 S. Ct. at 2683); accord U.S. v. Bethea, 735 F.3d 86, 87 (2d Cir. 2013). First, the sentencing court must “determine that a reduction is consistent with §1B1.10 * * * by determin[ing] the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Dillon, 560 U.S. 817, 130 S. Ct. at 2691. “Specifically, §1B1.10 requires the court to begin by ‘determin[ing] the amended guideline range that would have been applicable to the defendant’ had the relevant amendment been in effect at the time of the initial sentencing.” Id.
The defendant is entitled, and the government agrees, to a reduced sentence. While “[t]he government does not dispute that defendant is eligible for a limited sentence reduction under 18 U.S.C. §3582(c)(2), [it]…argues, in essence, that no reduction of defendant’s sentence is warranted in this case.” Pp. 2. “As relevant here, Amendment 782 to the Guidelines, effective November 1, 2014, modified §2D1.1(c) of the Guidelines by reducing the offense levels in the Drug Quantity Table by two (2) levels and, thereby, lowering the advisory Guidelines sentencing range for certain categories of drug-related offenses.” Pp. 4. This reduction in the sentencing range would impact the Defendant’s sentence but it does not bind a judge to act accordingly.
Indeed, “[a] retroactive amendment to the Guidelines merely authorizes a reduction in sentence; it does not require one.” Wilson, 716 F.3d at 52 (quotations and citation omitted); see also U.S. v. Rios, 765 F.3d 133, 137 (2d Cir. 2014), cert. denied by Bautista v. United States, — S. Ct. —, 2015 WL 2256183 (Oct. 5, 2015) (reviewing the district court’s denial of a motion to reduce the defendant’s sentence under §3582(c)(2) for abuse of discretion). See Pp. 5. The Court noted, as the Defendant’s motion made clear, that the Defendant is entitled to a sentence reduction. Instead of the over seventy months the defendant was sentenced, the Defendant would be entitled to a sentence reduction of as much as fifteen months. The Court agrees with the government’s argument, however, that the relevant factors at the time of sentencing have not changed. Because there is no change in circumstances, the Court finds that no change in sentence is warranted even though the sentencing guidelines changed.
Conclusion: Sentence upheld; motion denied.
The Case is USA v. Johnson, 12-CR-261, NYLJ 1202739531148, at 1 (EDNY, Decided October 8, 2015)