
    The People of the State of New York, Plaintiff, v Bartholomew Spadaro, Defendant.
    District Court of Suffolk County, Sixth District,
    June 23, 1980
    APPEARANCES OF COUNSEL
    
      Suozzi, English, Cianciulli & Peirez, P. C. (Martin B. Ashare of counsel), for defendant. Martin J. Kerins, Town Attorney (Francis L. Bosco of counsel), for plaintiff.
   OPINION OF THE COURT

Lawrence Newmark, J.

The defendant is charged with operating an airpark without a permit in violation of a zoning provision of the Code of the Town of Brookhaven. (Now § 85-277 [C] [5].)

There has been a trial and the defendant has moved to dismiss. One of the grounds upon which the defendant urges that the motion be granted is that the ordinance is unconstitutionally vague.

Procedurally, such a motion should be made in writing and before trial. (CPL 255.20, 255.10, subd 1, par [b]; 170.30, subd 1, par [a]; 170.35, subd 1, par [c].) However, if an ordinance is unconstitutionally vague, that should be sufficient good cause to warrant consideration of the otherwise untimely motion. (See CPL 255.20, subd 3.) Further, both parties have argued the merits of the motion in their memoranda of law and no objection to the form of the motion has been made.

The defendant’s argument is that the term airpark is not defined in the town code and is not a word with a definite, ascertainable and familiar meaning.

"A statute which employs terms having an accepted meaning Tong recognized in law and life’ cannot be said to be so vague and indefinite as to afford the defendant insufficient notice of what is prohibited or inadequate guidelines for adjudication” (People v Cruz, 48 NY2d 419, 428). However, if it is concluded that the term airpark is not a word with an "accepted meaning Tong recognized in law and life’ ” then, in the absence of a definition provided in the town code, the ordinance may not provide fair warning to a person of ordinary understanding of what conduct is proscribed. (See People v Goodman, 31 NY2d 262, 267.)

The court is well aware of the strong presumption of validity which attaches to the enactments of a municipal legislative body. (See De Sena v Gulde, 24 AD2d 165, 169.) But, that presumption can be rebutted.

A modest survey reveals that the term airpark is listed and defined in Webster’s Third New International Dictionary of the English Language-Unabridged (1964) and the Official Scrabble Players’ Dictionary (1978) as "a small airport”. However, the word could not be found in Black’s Law Dictionary (1968), Funk & Wagnalls Standard Encyclopedic College Dictionary (1968), the Webster’s Unabridged International Dictionary of the English Language (1976) nor in the American Heritage Dictionary of the English Language (1970). What this suggests is that airpark is not a word with "an accepted meaning long recognized in law and life”.

Even considering the definition provided, there is some question as to whether "a small airport” is a definition of sufficient precision to give adequate prior warning. It raises the question, "How small?” Does it refer to the size of the aircraft, the number of flights, the area of the plot in question or some combination of these criteria? Is a landing strip used once a week or once a month an airpark? While the answers to these questions are not necessary in the context of the present holding, their absence reflects additional difficulties with this zoning ordinance.

Despite the strong presumption as to its validity, this ordinance is one which fails to give a person of ordinary understanding prior warning of the conduct proscribed. Accordingly, a conviction for its violation cannot be sustained. The motion to dismiss is granted.

The other grounds upon which the defendant bases his motion need not be considered.  