Opinion
No. 2013–2142 WCR.
12-04-2015
The PEOPLE of the State of New York, Respondent, v. Diane JAMES, Appellant.
Opinion
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fines, if paid, are remitted.
The People charged defendant with, among other things, violations of the Village of Rye Brook Zoning Code (Code), in a document exhibiting the form and content of a criminal court accusatory instrument (see CPL 100.15[1]-[3] ; 100.40[1][b] ), but also bearing, as a separate portion, a caption and the information appropriate to an appearance ticket (see CPL 150.10[1] ), which was independently signed and dated by the complainant. The instrument charged defendant with having “utilized” a single-family premises, wherein defendant was alleged to “resid[e],” as a multi-family dwelling in violation of the certificate of occupancy and the single-family zoning provisions of the Code (Code §§ 250–23, 250.10[A] ). After a jury trial, defendant was convicted of the charges and fined $3,500 on each conviction. Defendant appeals, arguing, in part, that the accusatory instrument is jurisdictionally defective.
“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Jackson, 18 NY3d 738, 741 [2013], quoting People v. Dreyden, 15 NY3d 100, 103 [2010] ) and, as the record does not reveal that defendant waived prosecution by information (People v. Dumay, 23 NY3d 518, 522 [2014] ), the standards of review of the sufficiency of the instrument are those applicable to informations (see CPL 100 .40[1][c]; 170.65[1], [3]; Jackson, 18 NY3d at 741 ; see also People v. Kalin, 12 NY3d 225, 228 [2009] ).
The purpose of an information is to “ensure[ ] that a legally sufficient case can be made against the defendant” (Dumay, 23 NY3d at 522 ), and an information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and the defendant's commission thereof (see CPL 100.15 [3 ]; 100.40[1]; People v. Henderson, 92 N.Y.2d 677, 679 [1999] ; People v. Alejandro, 70 N.Y.2d 133, 136–137 [1987] ). By failing timely to object, defendant waived any objections to hearsay defects in the accusatory instrument (People v. Keizer, 100 A.D.2d 114, 121 [2003]; People v. Casey, 95 N.Y.2d 354, 362–363 [2000] ; People v. Glover, 41 Misc.3d 143[A], 2013 N.Y. Slip Op 52059[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2013] ). Although the counts of the information “sufficiently tracked the language” of the violations and provided “fair notice of the charge[s] against [defendant]” (People v. Cioffi, 105 AD3d 971, 971 [2013] ; People v. Dudley, 289 A.D.2d 503, 503–504 [2001] [same] ), hearsay defects aside, we find, after affording the instrument “a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d at 360 ), that the instrument fails sufficiently to allege the Code offenses.
The instrument alleges that defendant committed the offenses by “allow [ing] or caus[ing] to allow the one family residence” wherein she “resid [es] ... to be utilized as a multi-family dwelling” in violation of the certificate of occupancy. While the certificate of occupancy ordinance specifically addresses the responsibilities of an “owner” (Code § 250–10[A] ), the instrument fails to allege a legal basis for defendant's responsibility for that violation. Aside from the address of the premises where the violations occurred and the identification of the person alleged to have committed them, the accusatory instrument contains no facts which establish defendant's relationship to the premises other than the fact that defendant “resides” at the subject premises and the complainant's assertion that he has “direct knowledge” that the offense was committed based on “[b]uilding department records, public records & [a] site inspection” (see e.g. People v. Baumgarten, 37 Misc.3d 131[A], 2012 N.Y. Slip Op 51980[U], *1 [App Term, 9th & 10th Jud Dists 2012]; People v. Saviano, 32 Misc.3d 75, 76 [App Term, 9th & 10th Jud Dists 2011] ; People v. Santulli, 28 Misc.3d 136[A], 2010 N.Y. Slip Op 51450[U], *1 [App Term, 9th & 10th Jud Dists 2010]; People v. Caravousanos, 2 Misc.3d 7, 11 [App Term, 9th & 10th Jud Dists 2003] ).
The instrument is also defective given the absence of facts of an evidentiary nature “relied upon to constitute the alleged violation” (People v. Rollano, 42 Misc.3d 140[A], 2014 N.Y. Slip Op 50182[U], *1 [App Term, 9th & 10th Jud Dists 2014] ) of the single-family zoning provision (Code § 250–23). If the offense was committed by defendant's having physically reconfigured the premises to be utilized as a multi-family dwelling (see Code § 250–2[B] [defining “use ... to include designed, intended or arranged to be used' ”), no facts are alleged which establish such modifications (see e.g. People v. Cusack, 34 Misc.3d 151[A], 2012 N.Y. Slip Op 50299[U], *2 [App Term, 9th & 10th Jud Dists 2012]; People v. Santoro, 32 Misc.3d 136[A], 2011 N.Y. Slip Op 51471[U], *1 [App Term, 9th & 10th Jud Dists 2011]; People v. Hall, 4 Misc.3d 60, 62 [App Term, 9th & 10th Jud Dists 2004] ; People v. Caravousanos, 2 Misc.2d at 10; cf. People v. Cullen, 195 Misc.2d 692, 694 [App Term, 9th & 10th Jud Dists 2003] ).
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fines, if paid, are remitted.
TOLBERT, J.P., IANNACCI and CONNOLLY, JJ., concur.