Opinion
Docket Nos. 2021SR002005 2021SR002006 2021SR002007 2021SR002008 2021SR002043 2021SR002044 2021SR002045 2021SR002046 2021SR002047
10-21-2021
The PEOPLE of the State of New York, Plaintiff, v. Keith MCALARNEY, Defendant.
The Richmond County District Attorney's Office, Michael McMahon, Esq., District Attorney, by: Gaetano Parrinello, Esq., ADA, Staten Island, for the People. Mark J. Fonte, Esq. Staten Island, for the Defendant.
The Richmond County District Attorney's Office, Michael McMahon, Esq., District Attorney, by: Gaetano Parrinello, Esq., ADA, Staten Island, for the People.
Mark J. Fonte, Esq. Staten Island, for the Defendant.
Ronald Castorina, Jr., J.
The following documents were submitted and read on this motion:
1. Notice of Motion to Dismiss and Affirmation in Support (Defense Submission).
2. Affirmation in Response to Defendant's Motion (People's Submission)
3. Supporting Deposition of First Deputy Sheriff Maureen Kokeas (Sheriff's Submission)
4. Supporting Deposition of Sergeant Deputy Sheriff Richard LeBlond (Sheriff's Submission)
Upon the foregoing documents, it is hereby
ORDERED, that Docket Nos. 2021SR002044; 2021SR002007; 2021SR002047; and 2021SR002008 are DISMISSED for facial insufficiency, and it is further
ORDERED, that Docket Nos. 2021SR002005; 2021SR002006; 2021SR002043; 2021SR002045; and 2021SR002046 are DISMISSED, in the interest of justice, and it is further
ORDERED, that the Court's sua sponte Motion to Dismiss, is deemed moot, and is therefore DISMISSED, and it is further
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
MEMORANDUM DECISION
Facts
Defendant KEITH MCALARNEY, owner of Mac's Public House, a bar and restaurant formerly located in Staten Island, was issued nine (9) simplified informations, more commonly known as "Summonses," by New York City Sheriff deputies, on April 9, 2021. The nine (9) Summonses were issued based upon two separate inspections by the Sheriff, several months apart. Dockets ending in 2043 (Failure to Observe Order), 2044 (Unlicensed Bottle Club), 2045 (Violation of Emergency Measures), 2046 (Violation of Executive Order), and 2047 (Unauthorized Warehousing of Alcohol) allege December 1, 2021 as the date of the claimed offenses (hereinafter "The December 1st Summonses"). Dockets ending in 2005 (Failure to Observe Order), 2006 (Violation of Executive Order), and 2007 (Unlicensed Bottle Club) allege March 19, 2021 as the date of the claimed offenses (hereinafter "The March 19th Summonses"). Each of the nine (9) summonses were affirmed, on their face, under the penalty of perjury, and issued to Defendant, on or about April 9, 2021, by Sergeant Deputy Sheriff Richard LeBlond.
On September 27, 2021, just before the Defendant's arraignment on the instant Dockets, the Court was presented with the independent Supporting Depositions of Deputy Sheriff Robert LeBlond, and First Deputy Sheriff Maureen Kokeas, both dated June 21, 2021. These documents had been sent to the Criminal Court Clerk's office, directly from the Office of the NYC Sheriff. Neither the People nor the Defendant had been individually served with a copy of these Supporting Depositions, however, the Court made copies available for the parties immediately after the arraignment.
The Court, on its own motion, ordered the parties to submit affirmations on the issue of dismissal of the matters in the interest of justice, pursuant to People v Clayton , (41 AD2d 204 ) and CPL §§ 210.40 and 210.45. In addition, the Court provided the parties with an opportunity to submit reply affirmations, in their own discretion. Defense Counsel submitted a Notice of Motion to Dismiss in the interest of justice, and for other relief as the Court may deem just and proper, along with an Affirmation in Support. The People submitted an Affirmation in response to Defendant's Motion to Dismiss. Neither party submitted a Reply Affirmation. The matter was set for Decision on October 21, 2021.
Discussion
I. Deficiencies of the Supporting Depositions
A valid supporting deposition is a written instrument accompanying or filed in connection with an Information, a Simplified Information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument, and support or tend to support the charge or charges contained therein. (See CPL § 100.20 ). The phrase "factual allegations of an evidentiary character" means that there should be no conclusory descriptions of what the deponent personally observed, heard, or experienced. (SeePeople v Dumas, 68 NY2d 729 [1986] ). So long as a supporting deposition contains factual allegations demonstrating that the subscriber has read he accusatory instrument filed in connection with the case; attests that the facts stated therein were based on information provided by him from his personal knowledge; and verifies, under penalty of perjury, that all such facts are true , then it should be deemed valid to corroborate a complaint. (See CPL §§ 100.20, 100.30 ; People v Markowitz , 148 Misc 2d 117 [Crim Ct NY County 1990] )
In this case, the Court has serious concerns as to the veracity of the supporting depositions submitted. Here, two separate individuals submitted supporting depositions without verification, under the penalty of perjury that all such facts contained therein are true. The deponents indicate that they were "duly sworn," however, they make no mention as to whether the allegations contained therein are being made on personal knowledge, or whether they are being made based upon hearsay, nor do they indicate that they are making such statements in the face of the draconian consequences of perjury, pursuant to CPL 210.45. Without such language, the Court has great cause to be concerned as to the veracity of the allegations contained in the document. Addditionally, the supporting deposition of First Deputy Sheriff Maureen Kokeas, contains hearsay, as evidenced in Paragraph 4, where the deponent states "Upon information and belief, based upon the supporting deposition of Sergeant Richard LeBlond ....". The allegations stemming from such assertions, can not be given credence by this court.
II. Political Overtones within the Supporting Deposition
Moreover, this Court finds a distinct political overtone to this investigation, which is quite chilling and disconcerting. There is no doubt that the Sheriff's Office was aware of the Defendant's political beliefs which were in clear opposition to the Executive Orders and Mandates handed down after, and during the Covid-19 pandemic. Mac's Public House and its owners had been repeatedly in the news after the first encounter with the NYC Sheriff, and the establishment had become symbolic of the clash between the Staten Island small business community and the dictates of the Executive branch of our City and State government. The March 19th inspection was no ordinary inspection. In fact, Deputy Sheriff Kokeas claims to have gained access to a locked and closed Mac's Public House, by knocking on the front door and gaining entry under the false pretense of being simpatico with Mac's. She claimed in her deposition, when trying to gain entry to Mac's, that "I said in sum and substance, that we came to purchase some t-shirts and that we supported Mac's Pub." (See Supporting Deposition of M. Kokeas, page 2, para. 5 ). Furthermore, in an attempt to illustrate that she was served an "alcoholic beverage," the deponent claims to have "posed for a photograph taken by Sgt. Tsatsaronis depict[ing] me inside the subject premises holding the open alcoholic beverage". The use of a photograph (noted as EXHIBIT A of the Supporting Deposition) as evidence, is not unusual. However, the Court finds the deponent's decision to "pose" next to a political sign on a wall (that features the name "CUOMO" in capital letters, surrounded by a circle with a slash through it) to be a concerning act, suggestive of underlying political motivations. The Deputy could have chosen to pose without this signage in view, and merely with the alleged alcoholic beverage in hand. As a result, the Court finds that there are significant issues of credibility in connection with this deponent's written testimony, and that there is reason to believe that the Defendant may have been treated disparately.
In the supporting deposition of Sergeant Deputy Sheriff Richard LeBlond, there are no relevant facts pertaining to either the December 1st Summonses, or the March 19th Summonses, nor are there any factual allegations that demonstrate that the subscriber has read the the accusatory instrument filed in connection with the case. In fact, there is a question of relevance, as the document referenced unrelated instances, and summonses, not germane to the instant proceedings. Even if the supporting deposition were properly sworn under the penalty of perjury, it would have little corroborative effect on the accusatory instruments herein.
Conclusion
Based upon the foregoing, the Court, in its discretion, has determined that the supporting depositions lack credibility, are legally deficient, and fail to allege factual assertions to fully corroborate the accusatory instruments.
III. Facial Insufficiency
In order to be facially sufficient, an information must contain an accusatory part designating the offense or offenses to be charged ( CPL 100.15 [1], [2] ) and a factual part containing facts of an evidentiary nature supporting or tending to support the charges ( CPL 100.15[1], [3] ). The factual allegations, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged ( CPL 100.40[1][b], [4][b] ; People v. Casey , 95 NY2d 354 [2000] ). In addition, a sufficient information must contain non-hearsay allegations in the factual part and/or in any supporting depositions that, if true, establish every element of the offense and the defendant's commission of the offense ( CPL 100.40[1][c] ; People v. Alejandro , 70 NY2d 133 [1987] ; People v. Hall , 48 NY2d 927 [1979] ). Conclusory allegations are insufficient ( People v. Dumas , 68 NY2d 729 [1986] ).
A. Unlicensed Bottle Club Summonses:
Docket Nos.: 2021SR002044, and 2021SR002007
ABC Law § 64-b requires a license to sell liquor on premises commonly known as a bottle club. A prima facie violation of ABC § 64-b requires establishment of the following elements: "[1] that the defendant had a proprietary or pecuniary interest in the subject premises; [2] that the subject premises had an assemblage capacity of at least 20 persons; and [3] that the subject premises were, in fact, unlicensed." People v Nunez , 29 Misc 3d 1050 [Crim Ct NY County 2010] ).
The summonses, supporting depositions, and accompanying exhibits, fail to establish, beyond the inexpert opinion of the Deputy Sheriff, that the premises had an assemblage capacity of 20 or more persons. There was no citing of maximum capacity signage, no photographic evidence of such signage, no photographic evidence of a thickly populated crowd within the premises, nor of an overview of the layout of the establishment, and there was no documentation from either the NYC Department of Buildings or the NYC Fire Department as to the capacity of the premises.
As one of the three required elements is not established, Dockets 2021SR002044, and 2021SR002007 are deemed facially insufficient, and are DISMISSED.
B. Unauthorized Warehousing of Alcohol
Docket Nos.: 2021SR002047, and 2021SR002008
The factual allegations within the referenced Docket Nos., include vague statements that the Defendant was storing and keeping alcoholic beverages in and upon the premises without a valid NYS Liquor Authority License or permit. Neither in the summons itself, nor in the supporting depositions provided by the Office of the NYC Sheriff, are there any references to the brand names or quantities of alcoholic beverages alleged to have been stored or warehoused on the premises. Nor are there any allegations that the alcohol alleged to have been stored or kept on the premises, was for the purpose of selling to another retailer of alcohol, which would establish a prima facie case of Unauthorized Warehousing of Alcohol.
In using the words "stored or kept," the legislature intended to set a threshold of something more than mere possession of alcoholic beverages for the purpose of "sale" (People v Chavez , 51 NY3d 678 [2016]). Possession, and even sale of alcohol do not establish conduct beyond mere possession. (People v Fleming , 51 NY3d 678 [2016]).
The factual allegations here, do not establish conduct beyond mere possession of alcoholic beverages, and do not rise to the level of Unauthorized Warehousing of Alcohol. The summonses, taken into consideration along with the relevant portions of the supporting depositions, are facially insufficient to sustain the charge, and are DISMISSED.
IV. Dismissals in the Interest of Justice
Docket Nos.: 2021SR002005; 2021SR002006; 2021SR002043; 2021SR002043; and 2021SR002046
Pursuant to CPL § 210.40, a complaint may be dismissed "when, even though there may be no basis for dismissal as a matter of law ..., such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice." In making its determination, the court "must, to the extent applicable, examine and consider, individually and collectively, the following: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. ( CPL § 210.40. See alsoPeople v Rickert, 58 NY2d 122, 126 [1983] ).
Although the "Trial Court's discretion to dismiss in the interest of justice, should be ‘exercised sparingly’ [,]" Defendant KEITH MCALARNEY's situation presents that " ‘rare’ and ‘unusual’ case where it ‘cries out for fundamental justice beyond the confines of conventional considerations.’ " People v. Insignares, 109 AD2d 221, 234 [1st Dept 1985] (quoting People v Belge, 41 NY2d 60, 62-63 [1976] ). By the same token, while a court's discretion to dismiss a complaint "is neither absolute nor uncontrolled" ( People v. Wingard, 33 NY2d 192, 196 [1973] ), the purpose of the statute was "to introduce into the criminal law a flexibility somewhat akin to that equity essayed on the civil side[.]" People v. Rickert, 58 NY2d 122, 126 [1983].
When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point ‘catechistic’ discussion of all ten factors listed under Criminal Procedure Law." People v Gragert, 1 Misc 2d 646, 648 [Crim Ct NY Co 2003] (Cooper, J.) (quoting Rickert, 58 NY2d at 128 ). Rather, this Court considers the factors "individually and collectively" in order to strike "a sensitive balance between the interests of the individual and those of the state." Id. (citingPeople v. Harmon, 181 AD2d 24, 25 [1st Dept 1992]). The Court has in mind, each of the factors contemplated by the statute, in rendering its decision.
This analysis applies equally to CPL § 210.40(h), which requires consideration of "the impact of a dismissal upon the confidence of the public in the criminal justice system." This Court must wrestle with the question of the perceived precedent that would be set by dismissing these specified charges. Here, rather than undermining the public's confidence in the criminal justice system, a dismissal is more likely to bolster it; as it reminds the public that judges do not function like machines, fixing sentences according to some inflexible statutory algorithm, but rather are cognizant of, and governed by, countless human variables that determine the justness or unjustness of imposing a given sentence. By the same token, this Court must also consider "the impact of a dismissal on the safety or welfare of the community." ( CPL § 210.40(h) ).
KEITH MCALARNEY is a forty-seven (47) year old married father of three children, who resides with his family on Staten Island. His only contact with the Criminal Justice system came in relation to the issues presented before the Court, with regard to the Covid-19 pandemic and Executive Orders and Mandates that have affected his livelihood. Through protests, and civil disobedience, whether rightly or wrongly, he sought to contest the mandates imposed upon him and other, similarly situated small business owners, financially crushed by the pandemic, and the policies imposed by the City and State.
KEITH MCALARNEY comes before the Court at least seven (7) to ten (10) months from the occurrences which lead to the issuance of the many summonses before this Court, on motion. The Appellate Division in Clayton itself observed that, among the criteria to take into account regarding a motion to dismiss in the interest of justice (before the statute was amended in 1979 to include the enumerated factors that exist today), the court should consider "any prejudice resulting to the defendant by the passage of time[.]" Clayton, 41 AD2d at 208. This Court ascribes due weight to the passage of time in this case, under the statutory authority of CPL § 210.40(j), which requires consideration of "any other relevant fact indicating that a judgment of conviction would serve no useful purpose."
KEITH MCALARNEY is currently unemployed, and financially bankrupt from the monumental losses suffered from the closure of Mac's Pub. KEITH MCALARNEY has lost his business, Mac's is permanently closed, and he has forfeited his ability to ever obtain a New York State Liquor License to open another establishment. The Executive Orders, and Mandates charged, no longer apply to him, as he is no longer in business.
MCALARNEY has suffered a great deal, and much of what he has suffered, is irreparable. At this juncture, the Court deems it appropriate to temper justice with mercy, for a simple small businessman, who, but for Covid-19, would likely never have come into contact with the Criminal Justice system. For the foregoing reasons, the Court hereby DISMISSES Docket Nos.: 2021SR002005; 2021SR002006; 2021SR002043; 2021SR002043; and 2021SR002046, in the interest of justice.
V. CONCLUSION
Therefore, based upon the foregoing, it is hereby
ORDERED, that Docket Nos. 2021SR002044; 2021SR002007; 2021SR002047; and 2021SR002008 are hereby DISMISSED for facial insufficiency, and it is further
ORDERED, that Docket Nos. 2021SR002005; 2021SR002006; 2021SR002043; 2021SR002045; and 2021SR002046 are hereby DISMISSED, in the interest of justice, and it is hereby
ORDERED, that the Court's sua sponte Motion to Dismiss, is deemed moot, and is therefore DISMISSED, and it is further
ORDERED, that the Clerk of the Court shall enter judgment accordingly.