In November 2007, Southold bay constables charged Gary Lockle of Lindenhurst and Paul Sharkey, then a Westhampton Beach resident, with various violations of laws pertaining to shellfishing. The charges were brought before Southold Town Justice Rudolph Bruer.

But this month, a State Supreme Court Justice signed an order barring the town justice court from "exercising jurisdiction" over the summonses issued last year to Mr. Lockle and Mr. Sharkey. On Sept. 5, State Supreme Court Justice Ralph Costello issued a "writ of prohibition" barring the local justice court from proceeding with the action against the two baymen. The writ transferred the proceeding to county court.

Suffolk Times photo by Denise Civiletti Paul Sharkey and his mother, Florence, on their boat Tuesday morning in New Suffolk, after Southold Town police confiscated their gear and the clams they'd harvested and issued summonses to them and another clammer for alleged violation of the state environmental conservation law.

The baymen sought the writ of prohibition by arguing that the Southold justice court lacked jurisdiction because "The Peconic Bay is not in the Town of Southold," according to a legal brief filed by the defendants' attorney, Gino Giorgini of Deer Park.

He cited a case decided by New York's highest court in 1905, Town of Southold v. Parks, which held that Southold Town does not own the underwater lands of the bays surrounding the town because the 17th century land grant from colonial governor Edmund Andros, known as the Andros Patent, did not include those underwater lands.

It follows, Mr. Giorgini argues, that Southold Town has no jurisdiction to police those waterways or issue summonses for alleged violations of law within those waters. "The Town of Southold Justice Court cannot assert jurisdiction because no crime took place within the Town of Southold," Mr. Giorgini wrote in his memorandum of law.

The town sharply disagrees.

"Jurisdiction is different from ownership," town attorney Patricia Finnegan said this week. "The bay constables are empowered to enforce the laws of the State of New York out to the geographic boundary of the Town of Southold, which is out to the middle of the bay," she said.

So when Mr. Lockle, Mr. Sharkey and Mr. Sharkey's mother, Florence, of Patchogue, a bayman for 50 years and current president of the Brookhaven Baymen's Association, returned to Cutchogue Harbor Tuesday to dig clams, they were again ticketed by the town bay constable -- this time for allegedly clamming using mechanical means, in violation of the Environmental Conservation Law. And again, their gear and the clams they'd removed from the muddy bottom of the bay were confiscated by the town police. The summonses issued Tuesday are returnable in town justice court.

Mr. Giorgini said afterward he intends to challenge the court's jurisdiction again and perhaps pursue additional legal action against the town, which he said he personally served last week with the writ of prohibition in the first action.

Ms. Finnegan said the court erred in granting that writ and she would be discussing what to do about that with the district attorney's office, which is prosecuting the defendants' alleged violations last November of a number of provisions of the state environmental conservation, penal and navigation laws.

The century-old case relied upon by Mr. Giorgini (Town of Southold v. Parks) ruled that the 1676 Andros Patent, which conveyed ownership of the lands of the "Towne of South Hold" to "the freeholders and inhabitants of sd Towne" did not convey title to the underwater lands of the bays on the south shore of the town. The southern boundary of the patent, the court ruled, is "the high water mark on the north side of Peconic and Gardiners bays, following the line of the high water mark of Peconic Bay around to Red Creek."

"In my opinion, based on the case law and what has transpired, anyone who was convicted or pled guilty in the Town of Southold Justice Court to any crime occurring on the Peconic Bay can have their conviction or plea overturned," Mr. Giorgini said. "There is no time deadline on jurisdictional defects. If the court didn't have jurisdiction to handle the case, the court couldn't take your plea or enter a conviction," he said.

denise@timesreview.com

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