
    The People of the State of New York, Appellant, v St. Agatha Home for Children and Robert Keating, Respondents.
    Argued March 28, 1978;
    decided May 1, 1979
    
      POINTS OF COUNSEL
    
      Carl A. Vergari, District Attorney (James A. Cuddihy, of counsel), for appellant.
    I. The decision of the court below is contrary to the decided case law of the State of New York. (Group House of Port Washington v Board of Zoning & Appeals of Town of North Hempstead, 55 AD2d 636.) II. Under the Ferraioli decision, the group home herein cannot be considered a family for zoning purposes. (City of White Plains v Ferraioli, 34 NY2d 300.) III. The most recent case of Moore v City of East Cleveland in the Supreme Court of the United States confirms the doctrine and constitutionality of Belle Terre and is completely dispositive of the issue. IV. The logic of the dissent of the Court of Appeals in Port Washington also confirms the legality of appellant’s position herein. V. The problem is readily and easily soluble by legislative change, if deemed necessary. VI. The court below clearly erred in holding that the nonsecured detention facility herein was established in conformity with State policy and could not be prohibited by a contrary local zoning ordinance. (Ontario Knitting Co. v State of New York, 205 NY 409; Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488; Matter of Blount v Forbes, 250 App Div 15.) VII. The Pound Ridge Ordinance is clear, definite, reasonable and constitutional.
    
      David H. Berman and Gerald E. Bodell for respondents.
    I. The Justice Court erred in not granting respondents’ motion to dismiss at the close of the People’s case, as no evidence was set forth by the People to show that the home was occupied. (People v Williams, 34 AD2d 1046; People v Guarino, 56 AD2d 638.) II. The occupants of the subject premises may be considered a family for purposes of this ordinance. (City of White Plains v Ferraioli, 34 NY2d 300; Group House of Port Washington v Board of Zoning & Appeals of Town of North Hempstead, 45 NY2d 266; United States v Rumely, 345 US 41; Schneider v Smith, 390 US 17.) III. The State has pre-empted the field, leaving no room for local communities to restrict the areas within their geographical boundaries wherein State sponsored facilities may be operated. (Floy v New York State Urban Dev. Corp., 33 NY2d 1; Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Board of Coop. Educ. Servs. of Nassau County v Gaynor, 60 Misc 2d 316, 33 AD2d 701, 26 NY2d 612; Nowack v Department of Audit & Control of State of N. Y., 72 Misc 2d 518; Abbott House v Village of Tarrytown, 34 AD2d 821; Town of Brookhaven v Parr Co. of Suffolk, 76 Misc 2d 378; Long Is. Univ. v Tappan, 202 Misc 956; Matter of Franciscan Missionaries of Mary v Herdman, 7 AD2d 993; Berenson v Town of New Castle, 38 NY2d 102.) IV. The ordinance under which respondents were convicted by the Justice Court is so vague as to constitute the denial of due process. (Bouie v City of Columbia, 378 US 347; United States v Harriss, 347 US 612; People v Munoz, 9 NY2d 51; People v Scott, 26 NY2d 286; Lanzetta v New Jersey, 306 US 451.) V. The Pound Ridge Ordinance is unconstitutional as violative of respondents’ rights to equal protection of law. (San Antonio School Dist. v Rodriguez, 411 US 1; Shapiro v Thompson, 394 US 618; Moore v East Cleveland, 431 US 494; Poe v Ullman, 367 US 497; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Unitarian Universalist Church of Cent. Nassau v Shorten, 63 Misc 2d 978; N. A. A. C. P. v Button, 371 US 415; Kennedy Park Homes Assn. v City of Lackawanna, 436 F2d 108.)
   OPINION OF THE COURT

Per Curiam.

The order appealed from should be affirmed. Having elected to litigate this novel question of zoning law in the context of a criminal proceeding, the People must of course meet all burdens placed upon the People in a criminal proceeding, including the burden of proving all elements of the offense beyond a reasonable doubt. This they have failed to do.

Defendants are a private child care organization and one of its employees. They are charged with operating a nonsecure detention center for persons in need of supervision in violation of a local zoning ordinance in an area restricted to one-family occupancy. While defendants have made several arguments as to why their convictions were properly set aside by the Appellate Term, we find one so persuasive that we need not, and accordingly do not, reach their other contentions. Subdivision B of section 218-a of the County Law provides as follows: "Notwithstanding any other provision of law, each board of supervisors shall provide or assure the availability of conveniently accessible and adequate non-secure detention facilities, certified by the state division for youth, as resources for the family court in the county pursuant to article seven of the family court act, to be operated in compliance with the regulations of the division for youth for the temporary care and maintenance of alleged juvenile delinquents and persons in need of supervision held for or at the direction of a family court”. We interpret this subdivision as both authorizing and requiring a county to provide adequate facilities of the type described despite any conflicting law or local ordinance. In the instant case, there exists uncontroverted and indeed unchallenged evidence that defendant’s operation was established at the behest of the county, that its location has been approved by the county, and that it is funded by and through the county. The county having determined, as it is authorized to do by the statute, to fulfill its obligation through the vehicle of privately operated homes, that decision may not be overruled by application of a local zoning ordinance.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Order affirmed.  