Opinion
2020-615 N CR
12-16-2021
The People of the State of New York, Respondent, v. Lubavitch of Old Westbury, Inc., Appellant.
Harras Bloom & Archer LLP, (Linda S. Agnew of counsel), for appellant. Sahn Ward PLLC, (Jon A. Ward and Joseph Bjarnson of counsel), for respondent.
Unpublished Opinion
Harras Bloom & Archer LLP, (Linda S. Agnew of counsel), for appellant.
Sahn Ward PLLC, (Jon A. Ward and Joseph Bjarnson of counsel), for respondent.
PRESENT:: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, HELEN VOUTSINAS, JJ
Appeal from a judgment of the Justice Court of the Village of Old Westbury, Nassau County (Lenard Leeds, J.), rendered March 11, 2020. The judgment convicted defendant, after a nonjury trial, of violating sections 216-89 (A), 216-89 (C), 216-90 (A) and 216-111.2 (A) of the Code of the Village of Old Westbury, and imposed sentence.
ORDERED that the judgment of conviction is reversed, on the law, the fines, if paid, are remitted and the accusatory instrument is dismissed.
Insofar as relevant to this appeal, defendant was charged in an accusatory instrument with violating sections 216-89 (A), 216-89 (C), 216-90 (A) and 216-111.2 (A) of the Code of the Village of Old Westbury (hereinafter Code) based on the construction of a Mikvah.
A ritual bath for purification in accordance with Jewish law.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 N.Y.2d 98, 99 [1977]; see also People v Dumay, 23 N.Y.3d 518, 522 [2014]; People v Dreyden, 15 N.Y.3d 100, 103 [2010]). Here, since defendant did not waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern an information (see People v Hatton, 26 N.Y.3d 364, 368 [2015]; People v Kalin, 12 N.Y.3d 225, 228 [2009]; see also CPL 100.15, 100.40 [1]).
An information is sufficient on its face when, among other things, allegations of the factual part of the information and/or any supporting depositions establish, if true, the defendant's commission of the offense charged (see CPL 100.40 [1] [c]). A review of the accusatory instrument herein reveals that there is absolutely no allegation setting forth defendant's connection to the property in question or to the construction of the Mikvah in question. Thus as to each count, the accusatory instrument failed to establish defendant's commission of the particular offense charged (see CPL 100.40 [1] [c]), or even to provide reasonable cause to believe that defendant committed the charged offenses (see CPL 100.40 [1] [b]). Indeed, as to count one, this is particularly noteworthy because only the persons listed in Code § 216-89 (A) are capable of committing a violation thereof. Consequently, the accusatory instrument is jurisdictionally defective and must be dismissed (see People v Rozz, 66 Misc.3d 133 [A], 2019 NY Slip Op 52116[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Taffet, 54 Misc.3d 21, 24-25 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
We reach no other issue.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
RUDERMAN, P.J., and VOUTSINAS, J., concur.
GARGUILO, J., taking no part.