People v. Farrar, 38 N.Y.2d 627 (1976)

When a municipal ordinance defines each day of a continuing violation as a separate offense, multiple such violations can be charged in a single information, but only if each violation is stated in a separate count; absent separate counts, the maximum fine that can be imposed is the maximum for a single violation.

Summary

The People appealed a decision reducing a fine imposed on the defendant for violating a municipal code regarding property maintenance. The defendant was charged with failing to maintain his property, leading to insect and rodent infestation, over a period of several months. The city’s code defined each day of violation as a separate offense, and the trial court levied a fine exceeding the maximum single-violation amount. The Appellate Term reduced the fine. The Court of Appeals affirmed, holding that while the ordinance validly permitted cumulative penalties for continuous violations, those violations had to be charged in separate counts in the accusatory instrument.

Facts

The defendant was charged with violating the Long Beach Municipal Code by failing to maintain his property, resulting in insect and rodent infestation. The violation was alleged to have occurred continuously from October 21, 1971, to April 11, 1972. The City of Long Beach’s ordinances stated that each day a violation continues constitutes a separate violation. The City Court imposed a fine of $350 for Count X, which exceeded the maximum fine of $250 for a single violation under the city ordinances.

Procedural History

The City Court of Long Beach convicted the defendant upon a guilty plea and imposed fines totaling $1,050 and a jail sentence. The Appellate Term modified the judgment by reducing the fine for Count X from $350 to $250. The People appealed to the New York Court of Appeals, which affirmed the Appellate Term’s order, albeit on different grounds.

Issue(s)

Whether a defendant can be fined an amount exceeding the ordinance maximum for a single violation when the information alleges a continuous violation over a period of months, where the ordinance defines each day of violation as a separate offense, but the information does not contain separate counts for each day of violation.

Holding

No, because when a continuous violation is charged in a single count, the maximum fine that can be imposed is the maximum for one count, even if the ordinance specifies that each day of violation constitutes a separate offense.

Court’s Reasoning

The court reasoned that while the City of Long Beach’s ordinance validly allowed for cumulative penalties for continuous violations, the information charging the defendant did not properly reflect this. The court stated, “As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts of an information.” The court emphasized that because the offenses charged in Count X were contained in only one count, it was impermissible to punish the defendant as if he were charged with multiple counts. The court noted that each of the violations were joinable with others in the same information. The court distinguished the case from People v. Briary Improvement Corp., noting that Long Beach was not a second-class city and therefore not subject to the limitations of the Second Class Cities Law. The Court of Appeals declined to address whether Count X was void for duplicity because the defendant failed to cross-appeal. Therefore, the maximum fine imposable on the defendant was limited to $250, the maximum for a single count. The practical implication is that municipalities must carefully draft informations to include separate counts for each distinct violation when seeking cumulative penalties for continuing offenses.