
    In the Matter of Henry Kessler, Appellant, v Chester D. Sherman et al., as Justices of the Justice Court, Town of Shelter Island, Respondents, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued January 6, 1977;
    decided February 15, 1977
    
      Howard M. Finkelstein and Robert C. Crimmins for appellant.
    
      
      Louis J. Lefkowitz, Attorney-General (Joseph J. Zedrosser, Samuel A. Hirshowitz and Philip Weinberg of counsel), for intervenor-respondent.
   Memorandum. The order of the Appellate Division should be affirmed. We agree with the reasons stated by Mr. Justice Margett in the majority opinion at the Appellate Division that the prior prosecution for violating the town ordinance does not bar the prosecution now pending, in which the petitioner is charged with violating the State law (ECL 25-0202). In addition we would note that the two laws differ materially in scope and purpose. The town ordinance is only concerned with the town’s interest in local wetlands, while the State law, which applies to a much broader area, seeks to carry out a uniform State policy consistent with the ecology of the State wetlands areas in their entirety.

Indeed, in the State prosecution petitioner is charged with alteration of an area immediately adjacent to a wetland, as well as the wetland itself, which would not be violative of the town ordinance. Moreover, in the State prosecution, he is charged with altering the wetland and adjacent area without a State permit. The lack of a State permit does not violate the town ordinance with which the petitioner was charged in the town complaint, namely, acting without a written permit from the town board.

Thus in our view, separate prosecutions for these separate offenses are authorized by the letter and the spirit of CPL 40.20 (subd 2, par [b]).

Jones, J. (dissenting).

It is not disputed that the State now seeks to prosecute appellant for an offense under State statute based on the same act or criminal transaction that was the predicate for the town offense of which he was acquitted. The majority concludes that the prospective State prosecution in this instance falls within the exception of CPL 40.20 (subd 2, par [b]) and accordingly is not prohibited by CPL 40.20. I cannot agree.

Paragraph (b) lays down two requirements. First, each of the potentially duplicative offenses must contain an element which is not an element of the other. This criterion is met inasmuch as absence of a town permit is an element of the town offense but not an element of the State offense, and vice versa. Second, the statutory provisions defining the two offenses must be "designed to prevent very different kinds of harm or evil” (my emphasis). While I can agree that it may accurately be said that the State statute differs in operative scope from the town ordinance, I cannot conclude that they are intended or drafted to prevent “very different” kinds of harm or evil. With only the slightest articulable differences, each proscription has as its objective protection of the ecology of wetlands and thus of adjacent areas. The harm or evil sought to be regulated and contained under the State statute is not substantively different, although it may be of a potentially greater geographical dimension. I must conclude, therefore, that paragraph (b) is not applicable, and respondent can rely on no other paragraph of subdivision 2.

The offense under the town ordinance involved conduct on Monday, September 10, 1973. The State charge by way of some difference relates to alleged acts on Tuesday, September 11, and Wednesday, September 12, as well. It is asserted that as a matter of substance the offending conduct took place on Monday and that no separately cognizable conduct occurred on Tuesday or Wednesday. That may prove to be the case as to pleadings or proof. Such contentions, however, should not be resolved on the present record or in this proceeding. Prohibition under CPLR article 78 is an extraordinary remedy, a procedural vehicle for raising only jurisdictional issues going to the power of the court; it is not available to raise questions properly to be considered in the criminal proceeding (see La Rocca v Lane, 37 NY2d 575, 578-579).

Accordingly, in my view, the petition in this instance should be granted to the extent of prohibiting prosecution of appellant under ECL 25-0202 with respect to any conduct on September 10, 1973, and without prejudice to the right of appellant to raise any issue he may otherwise be entitled to raise with respect to charges as to his conduct on September 11 and 12, 1973.

Chief Judge Breitel and Judges Jasen, Gabrielli, and Wachtler concur; Judge Jones dissents and votes to reverse in a separate opinion; Judges Fuchsberg and Cooke dissent and vote to reverse on the dissenting opinion by Mr. Justice John P. Cohalan, Jr., at the Appellate Division (51 AD2d 52, 54-60).

Order affirmed, without costs, in a memorandum.  