Opinion
No. 7180.
2012-11-13
The PEOPLE of the State of New York, Plaintiff, v. Jesus AYALA, Defendant.
Brian D. Murphy, Esq., City of New Rochelle Department of Law New Rochelle, for the People. Jeffrey I. Klein, Esq., White Plains, for Defendant.
Brian D. Murphy, Esq., City of New Rochelle Department of Law New Rochelle, for the People. Jeffrey I. Klein, Esq., White Plains, for Defendant.
SUSAN I. KETTER, J.
Defendant's motion is denied.
Defendant seeks dismissal of this matter based upon the grounds that (a) the court has no jurisdiction of the case and that “no case exists because no information or supporting deposition has been filed or served and the tickets were issued to a non-existent person;” and (b) the appearance tickets were issued prematurely, without giving defendant a notice of violation as required by Section 111–40(A) of the New Rochelle City Code. The People oppose the motion, contending that the defendant was issued three appearance tickets and was arraigned on the appearance date on three separate informations which were filed with the court prior to arraignment. Furthermore, the defendant never indicated (during six separate court appearances and two separate warrant letters) that his name was other than Jesus Ayala. Defendant requested a non-jury trial, which was subsequently adjourned due to defendant's failure to appear.
The People maintain that the proceedings are not premature, as defendant was placed on notice by an “INSPECTION REQUEST FOR COMPLIANCE” form sent by first class mail to defendant, referencing the subject property and said notice was never returned.
BACKGROUND
Defendant stands charged with violating Sections 111–8 and 331–11A, Building permit required and Applications of regulations, respectively: conversion of a two-family to a three-family home, and violating Section 404.4.4 of the New York State Property Maintenance Code (Prohibited Occupancy). Approximately one year ago and pursuant to a police incident report of possible violations at the subject premises, the City Code Inspector attempted to contact defendant by phone. The inspector left a voice mail in early November 2011 and visited the site accompanied by the City's Quality of Life Task Force during the same period, but was unable to make any contact with anyone in the residence. He subsequently followed up by mailing an “INSPECTION REQUEST FOR COMPLIANCE” notice form to defendant on November 16, 2011 by first class mail. The letter was not returned. On November 18, 2011, the code inspector was contacted by phone by a person purporting to be Maria Ayala, defendant's wife. The inspector explained to her the reasons for his attempt to contact her, as well as the issue of whether the third floor of her home was being used as an illegal third dwelling. The person who identified herself as Ms. Ayala indicated that she would be on vacation during Thanksgiving and asked the building inspector to follow up with her on November 28, 2011.
The form is attached as People's Exhibit 1 and also contains handwritten notes regarding subsequent contact with the defendant.
During the November 28th follow up call, “Maria Ayala” instructed the inspector to contact her husband, Jesus Ayala, to arrange for an inspection of the property. The code inspector left a message for Mr. Ayala and subsequently received a call from an individual who identified himself as “Jesus Ayala” and not Jesus Flores, (hereinafter, defendant). The code inspector explained to defendant that the police had received complaints regarding an illegal third floor occupancy.
On December 2, 2011, the defendant scheduled an inspection of the property for December 7, 2011. On December 7th, the defendant canceled the inspection. On January 18, 2012, the city code inspector left another voice mail message for defendant requesting that defendant contact him to arrange for an inspection. Defendant did not respond.
On January 25, 2012, the code inspector visited the subject premises with the Quality of Life Task Force, and conducted an inspection in the presence of defendant, who advised him that he was “Maria Ayala's husband.” Defendant, who did not identify himself as Jesus Flores, confirmed that he occupied the first floor and basement with his family. At the conclusion of the inspection, defendant was issued three Court Appearance Tickets which are the subject of this motion. Defendant appeared on numerous occasions in New Rochelle City Court, requested a bench trial, received two warrant letters and never informed the court that his correct surname is Flores.
Defendant's affidavit is silent as to any attempt to advise the building officials or the Court of his correct name from November 2011 through October 2012, despite numerous opportunities to do so. He claims that he and his wife received no warning or notice and did not receive an order to direct the discontinuance of any illegal action or condition. Defendant further maintains that the lack of notice failed to afford them the opportunity to cure any of the alleged violations. Moreover, he states that he has hired an architect to address the issue of the legality of the premises as a three-family dwelling and has removed the tenants constituting the third occupancy, pending clarification from his architect.
DISCUSSION
Failure to Commence the Proceeding
New York courts have consistently held that an appearance ticket issued to a defendant is merely an “invitation to appear.” People v. Byfield, 131 Misc.2d 884 (1986). “There is ... ample authority for the conclusion that where the court has jurisdiction of the offense, the manner or means by which the defendant is brought before the court is immaterial and of little importance.” People v. Coore, 149 Misc.2d 864 (1991), quoting People v. McFarlane Co., 130 Misc.2d 70, 71 (1985).
In the present case, the defendant was issued three separate court appearance tickets on January, 25, 2011, directing him to appear in court on February 28, 2012. Defendant appeared on that date and answered the calendar call to the name “Jesus Ayala.” He was arraigned on all three dockets based upon three separate and properly verified informations which had previously been filed with the court. Defendant's argument concerning the supporting deposition deals with the procedures to be followed in the case of simplified traffic informations, where the defendant has the option to enter a not guilty plea by mail. See, McKinney's Vehicle and Traffic Law § 1806.
Defendant's argument that the ticket was issued to a non-person fails by estoppel. Defendant repeatedly appeared in court, repeatedly warranted and returned to court under the name of “Jesus Ayala” for a period of seven months. He cannot now be heard to complain when he repeatedly answered to the name of “Jesus Ayala” and failed to advise the building official or the court of his true name. Defendant's affidavit does not deny or even attempt to explain his conduct in this regard. Prematurity of the Proceeding.
Defendant argues that the tickets were issued prematurely, without warning, in contravention of Section 111–40(A) of the New Rochelle City Code, insofar as he did not receive notice and an opportunity to cure. Defendant specifically cites the fact that the relevant section of the code requires the enforcement officials to serve “a notice of violation or order” and that the inspector merely served an “INSPECTION REQUEST FOR COMPLIANCE” which failed to specify the violation, or demand the discontinuance of any action. As such, the defendant asserts that this court “may not allow the City to continue.” Defendant's Reply Affirmation at Page 2.
The New Rochelle City Code, Section 111–40. Penalties for offenses reads as follows:
A. Notice of violation. The Building Official shall serve a notice of violation or order on the person responsible for the erection, construction, alteration, extension, repair, use or occupancy of a building or structure in a violation of the provisions of this Chapter or the State Code or in violation of a detailed statement or a plan approved thereunder or in violation of a permit or certificate issued under the provisions of this Chapter, and such order shall direct the discontinuance of the illegal action or condition and the abatement of the violation.
B. Prosecution of violation. If the notice of violation is not complied with promptly, the Building Official shall request the Corporation Counsel to institute the appropriate proceeding at law or in equity to restrain, correct or abate such violation or to require the removal or termination of the unlawful use of the building or structure in violation of the provisions of this Chapter or the State Code or of the order or direction made pursuant thereto.
The statute is silent as to the form of the notice or order. It does not even specify that the notice or order be written. The statute in question is followed by Section 111–41. Stop Work Order, which provides in pertinent part, “A. Notice to owner ... The stop-work order shall be in writing and shall be given to the owner of the property ... and shall state the conditions under which work may be resumed.” (Emphasis Added).
See also, Section 111–6(3). “Powers and duties of enforcement official; personal liability. Inspections. The Building Official ... shall make the required inspections, ... and all reports of inspections shall be in writing.” (Emphasis Added).
Defendant does not deny the code inspector's communications with him and his wife regarding the inspector's explanation of the notice which had been mailed to defendant on November 16, 2011. Despite defendant's assertions to the contrary, the court finds that the statute does not require a detailed written formal notice in this instance. The uncontroverted facts demonstrate that an “INSPECTION REQUEST FOR COMPLIANCE” was served upon the home owner by first class mail on November 16, 2011 and not returned. In addition, the defendant offers no contradictory testimony as to the substance of the conversations between defendant and the code inspector or his wife and the code inspector between the first written notice served on November 16, 201 and the January 25, 2012 inspection. Defendant does not deny that these conversations occurred, but then states in conclusory fashion that he had no notice and opportunity to cure.
The defendant was not entitled to an extended period of time to abate the condition. He asserts that he removed the offending third occupancy, pending a determination to be made by his architect. However, a quick reading of the implicated statutes plainly demonstrates that removal of the occupants does not, in fact abate, or even mitigate the alleged violations of Sections 111–8, which requires a building permit, or Section 331–11A, which requires that buildings be “... erected, constructed ... used ... for any purpose except in conformity with this chapter.” So, while removing the offending occupancy tends to mitigate against the abuses sought to be prevented by the statute, it certainly does not equate to abatement or compliance with the above-referenced statutes.
Furthermore, procedural due process does not require a notice to cure. It requires notice and an opportunity to be heard, which were provided in this case. A requirement of notice to abate a nuisance, attaches only where the owner has no notice of the condition and cannot be charged with actual or constructive knowledge thereof. Matter of 300 W. 154th St. Realty Co. v. Department of Bldgs. of City of NY, 26 N.Y.2d 538, 543 (1970). That situation does not apply here, where defendant actually resides in the subject premises. Here, it was clear that defendant did receive a notice, which was followed up by extensive communication with the code inspector; that is all that due process and the enforcement statute require. People v. Fiore/Qualamar Corp., 3 Misc.3d 18 (2004), appeal denied3 NY3d 706 (2004).
Accordingly, based on the foregoing, defendant's motion is denied.
The foregoing constitutes the Decision and Order of this Court.