GUILDERLAND — The town will take Sharf Din to state court to get him to clean up his yard, the town’s attorney told The Enterprise this week.

Guilderland Town Justice Denise Randall issued a decision at the end of February in the case after Din’s Feb. 5 civil trial for accumulating rubbish in his yard at 110 North Reineman St. in McKownville. 

Randall found Din guilty of one of the two charges — of accumulating rubbish but not of insufficient receptacles — and set his sentencing for March 16, although court proceedings have been cancelled in the town to contain the spread of the coronavirus. The most he can be fined for is $250.

Din, a native of Afghanistan who keeps jumbled items including building materials all around his property, “has good intentions,” his wife had told the court in February. “He wants to fix up the house. He has grand ideas,” she told Randall.

Randall noted in her decision that, while the town court does not have jurisdiction to compel a defendant to take any action or refrain from taking any action, a state trial court would have the authority to “compel compliance.” 

Town Attorney James Melita told The Enterprise that his biggest concern had never been for the amount of money Din could be fined, but for obtaining his compliance. 

“If we got compliance, I wouldn’t care about the fine, period,” he said. 

He asked the building inspector this week if Din had been making an effort toward cleaning up the property, but learned that he had not, Melita said.

Melita is now drafting a Supreme Court action, he said, against Din. The Supreme Court is the lowest level in the state’s three-tiered system.

“We’ll have a different mechanism there for compliance,” he said. “The court may order Mr. Din to clean the yard and, in the event that he doesn’t comply, now he can be held in contempt of that court order.” 

Before the trial in town court, Melita had received approval from the town board to bring an action in Supreme Court, but he had hoped that the trial at the local level would be enough to  motivate him to clean up, he said. 

“Perhaps going into the Supreme Court will motivate Mr. Din,” the town attorney said.

“Overwhelming evidence”

Melita had brought two charges against Din, after Building and Zoning Inspector Louis Vitelli had worked with Din for years to try to get him to comply with the town’s zoning code. 

Randall’s Feb. 24 decision found Din guilty of “accumulation and storage of rubbish or garbage.”  

Melita provided “overwhelming evidence,” Randall wrote in her decision, that Din had “accumulated and stored rubbish on his property” in violation of the town code. 

Randall noted that the witnesses called by Din, who had acted as his own attorney, did not dispute the evidence and acknowledged the violation was longstanding and still ongoing. The witnesses offered various cultural and psychological explanations for Din’s behavior, Randall wrote, but “an explanation for illegal behavior is not the same as a defense.” 

The charge of which she found Din guilty has a maximum penalty of $250, Randall wrote. However, New York courts allow for “pyramiding,” or accumulation of penalties when a violation is ongoing, Randall noted, including for violations of town codes, and Guilderland has a pyramiding provision. Pyramiding allows for each day that a violation continues to count as a separate violation, with a separate fine for each day. 

But, Randall wrote, “in order for a court to impose a fine continuously the accusatory instrument must allege and notify the defendant that continuing violations will constitute separate offenses and that fines will pyramid.”

If this is not done, the accusatory instrument must be treated as charging just one violation, Randall wrote. In this case, the court documents failed to allege, she wrote, that each day’s continuation of the violation would count as a separate violation, explaining why she found Din guilty of just one count of accumulation of rubbish. 

Randall dismissed the other charge that Melita had brought — of violating the portion of the town code that requires rubbish and garbage be kept in “suitable and sufficient receptacles for receiving and containing” garbage and rubbish. She noted that there had been no mention in the accusatory instrument of whether Din had had receptacles or not. 

On this charge, Randall wrote, “In other words, the factual allegations in the information do not support a charge of the cited Code section.” 

Melita told The Enterprise that it was “fine” that the judge dismissed the second charge. Vitelli had written that other charge, he said, and it “never really applied anyway.”