Opinion
2015-2140 S CR
10-26-2017
The People of the State of New York, Respondent, v. Marie Makrides, Appellant.
Raymond Negron, Esq., for appellant. Egan and Golden, LLP (Christopher Bianco, Esq.), for respondent.
PRESENT: :
Raymond Negron, Esq., for appellant.
Egan and Golden, LLP (Christopher Bianco, Esq.), for respondent.
Appeal from two judgments of the Justice Court of the Village of Port Jefferson, Suffolk County (John F. Reilly, J.), rendered August 25, 2015. Each judgment convicted defendant, after a joint nonjury trial, of failing to obtain a rental occupancy permit.
ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted.
Defendant was charged in two separate accusatory instruments with violating Village of Port Jefferson Code (Code) § 205-4 for failing to obtain a rental occupancy permit. Code § 205-4 (A) provides the following:
"It shall be unlawful and a violation of this article and an offense within the meaning of the Penal Law of the State of New York for any person or entity who owns or rents a dwelling unit in the Village of Port Jefferson to use, establish, maintain, operate, let, lease, sublease, rent or suffer or permit the occupancy and use thereof as a rental occupancy without first having obtained a valid rental occupancy permit therefor. Failure or refusal to procure a rental occupancy permit hereunder shall be deemed a violation.The first information, which was executed by a code enforcement officer, alleges that, on August 20, 2014, he observed the following:
(1) Rebuttable presumption of rent. Any dwelling, dwelling unit, rooming house, rooming unit or any other premises subject to this chapter shall be presumed to be rented for a fee and a charge made if said premises are not occupied by the legal owner thereof."
"Home at 117 Beach St. Port Jefferson NY to be in violation of the housing rental code. A man named Christian Minoccheri age 26 answered the door at the residence and stated that he was a renter there of no relation to Marie Makrides. Mr. Minoccheri gave me a card to contact Marie Makrides with the business name Beach Street Properties. Prior written notice has been issued[.]
"The Code Enforcement Officer, also known as deponent[,] is familiar with the property files and that the defendant is in fact the Agent/Owner/Tenant of such property. A search
of Building Department records indicates no such permit or approval has been issued."
The second information, which was executed by the same code enforcement officer, alleges that, on November 5, 2014, he observed the following:
"Home at 117 Beach St. Port Jefferson NY to be in violation of the housing rental code. The required rental occupancy permit has not been obtained. Prior written notice has been issued[.]
The Code Enforcement Officer, also known as deponent is familiar with the property files and that the defendant is in fact the Agent/Owner/Tenant of such property. A search of Building Department records indicates no such permit or approval has been issued."
Defendant moved to dismiss the informations as facially insufficient, contending that the informations fail to contain facts of an evidentiary nature supporting or tending to support the charge, that they do not specify in what capacity defendant committed the violations, and that they are improperly based upon hearsay. In an order dated June 19, 2015, the Justice Court denied the motion. After a nonjury trial, the Justice Court found defendant guilty of both charges and, on August 25, 2015, sentenced her to pay a fine of $5,000 on each conviction. On appeal, defendant contends, among other things, that the informations are facially insufficient and that Code § 205-4 is unconstitutional.
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v Afilal, 26 NY3d 1050, 1051 [2015]; People v Case, 42 NY2d 98, 99 [1977]). Pursuant to CPL 100.40 (1), an information, or a count thereof, is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in CPL 100.15; and (b) the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) nonhearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof (see People v Hatton, 26 NY3d 364, 368 [2015]; People v Kalin, 12 NY3d 225, 228-229 [2009]). Where the information fails to meet these requirements, it is jurisdictionally defective (see Hatton, 26 NY3d at 368; People v Moore, 5 NY3d 725 [2005]). While the law does not require that the information contain precise words or phrases most clearly expressing the charge, the crime and the factual basis therefor must be sufficiently alleged (see People v Konieczny, 2 NY3d 569, 575 [2004]). Consequently, while the factual allegations in support thereof "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), they must also suffice to "give an accused notice sufficient to prepare a defense and . . . [be] adequately detailed to prevent a defendant from being tried twice for the same offense" (Casey, 95 NY2d at 360; see also Konieczny, 2 NY3d at 575).
As defendant moved in the Justice Court for dismissal of the instruments based upon the fact that they relied upon impermissible hearsay, the nonhearsay requirement of the informations (see CPL 100.40 [1] [c]) were not waived (see Casey, 95 NY2d at 367). Upon a review of the informations, we find that they are jurisdictionally defective and must be dismissed, since they do not establish, through nonhearsay allegations, that the dwelling was being used as a rental occupancy or that the rebuttable presumption contained in the Code (see Code § 205-4 [A] [1]) would apply. Rather, they simply allege that defendant failed to obtain a rental occupancy permit without stating why it was necessary for her to obtain one. Furthermore, the statement made by Christian Minoccheri to the code enforcement officer, which is contained in the first accusatory instrument, pertaining to the alleged violation that occurred on August 20, 2014, constitutes impermissible hearsay since there was no supporting deposition from Minoccheri. Consequently, the factual allegations contained in both informations do not state, through nonhearsay allegations, facts of an evidentiary character which establish every element of the offense charged and defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1] [c]; People v Rollano, 42 Misc 3d 140[A], 2014 NY Slip Op 50182[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v Curiale, 20 Misc 3d 133[A], 2008 NY Slip Op 51465[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).
In light of our determination, and because an appellate court is bound by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal, we do not reach defendant's other contentions (see People v Carvajal, 6 NY3d 305, 316 [2005]; People v Felix, 58 NY2d 156, 161 [1983]; People v Bowe, 61 AD3d 1185 [2009]).
Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed.
GARGUILO, J.P., TOLBERT and RUDERMAN, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 26, 2017