Opinion
2014-2297 S CR
02-22-2016
The People of the State of New York, Respondent, v. Jordan Taffet, Appellant.
PRESENT: :
Appeal from four judgments of the Justice Court of the Village of Ocean Beach, Suffolk County (William D. Wexler, J.), rendered October 6, 2014. The judgments convicted defendant, after a nonjury trial, of violating Village of Ocean Beach Code §§ 87-9, 87-10 and 96-1, respectively, with regard to premises located at 440 Dehnhoff Walk, and Village of Ocean Beach Code § 127-4 (A), with regard to premises located at 300 Cottage Walk.
ORDERED that the judgments convicting defendant of violating Village of Ocean Beach Code §§ 87-9, 87-10 and 96-1 are reversed, on the law, the accusatory instruments charging these offenses are dismissed, and the fines therefor, if paid, are remitted; and it is further,
ORDERED that the judgment convicting defendant of violating Village of Ocean Beach Code § 127-4 (A) is affirmed.
Insofar as is relevant to this appeal, defendant acted as a rental agent for houses located at 440 Dehnhoff Walk and 300 Cottage Walk on Fire Island, in the Village of Ocean Beach, Suffolk County, leasing these houses to groups of people for short periods of time during the summer of 2013. Defendant appeals from four separate judgments, convicting him, after a nonjury trial, of violating Village of Ocean Beach Code § 87-9 (no fire extinguisher in residential structure at 440 Dehnhoff Walk), Village of Ocean Beach Code § 87-10 (no smoke detectors in residential structure at 440 Dehnhoff Walk), Village of Ocean Beach Code § 96-1 (permitting garbage to be placed outside property at 440 Dehnhoff Walk during hours of collection other than those determined by the Board of Trustees), and Village of Ocean Beach Code § 127-4 (A) (renting a dwelling unit at 300 Cottage Walk for use or occupancy without a permit), respectively.
Defendant contends that the informations charging him with the four offenses were facially insufficient, his guilt was not established beyond a reasonable doubt, the verdicts of guilt were against the weight of the evidence, he was denied due process and a fair trial, the Justice Court should have recused itself, and the applicable village code provisions are unconstitutionally void for vagueness.
To be facially sufficient, an information must contain nonhearsay allegations of fact of an evidentiary character which establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]; People v Pampalone, 32 Misc 3d 130[A], 2011 NY Slip Op 51311[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of the requirement of nonhearsay allegations, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court ( see People v Casey, 95 NY2d 354). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the offense be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense ( see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360). The factual allegations of an information should be given a fair and not overly restrictive or technical reading ( see People v Casey, 95 NY2d at 360).
The information regarding the fire extinguisher violation was facially insufficient. The instrument alleged that defendant allowed the "above residence [440 Dehnhoff Walk] to be occupied without a valid fire extinguisher on [the] premises." However, Village of Ocean Beach Code § 87-9 provides that "[a]ll property owners shall install and tenants or other persons using or occupying any structure for residential purposes . . . shall maintain at least one Underwriter-approved extinguisher . . . of at least two and one-half . . . pounds' capacity which shall be replaced or recharged annually." The information did not allege that defendant was an owner, a tenant, or an occupant of 440 Dehnhoff Walk. Nor did it allege that defendant, as an owner, failed to install a fire extinguisher, or, as a tenant or occupant, failed to maintain a fire extinguisher. Thus, the information failed to allege every element of the offense. Consequently, the judgment convicting defendant of violating Village of Ocean Beach Code § 87-9 must be reversed and the accusatory instrument charging this offense dismissed.
The information regarding the smoke detector violation alleged that defendant allowed the "above residence [440 Dehnhoff Walk] to be occupied without any smoke detectors installed on premises creating a hazardous situation." Village of Ocean Beach Code § 87-10 provides that "[a]ll property owners shall install and tenants or other persons using or occupying any structure for residential purposes . . . shall maintain at least one Underwriter-approved smoke detector on each floor of any structure located on the property and shall maintain the same in good working order." While the information alleged that defendant allowed the residence to be occupied without any smoke detectors installed on the premises, it did not allege that defendant was an owner, tenant, or occupant of 440 Dehnhoff Walk. Thus, the information failed to allege every element of the offense. Consequently, the judgment convicting defendant of violating Village of Ocean Beach Code § 87-10 must be reversed and the accusatory instrument charging this offense dismissed.
The information regarding the placement of garbage at 440 Dehnhoff Walk was also facially insufficient. Defendant was charged with allowing "multiple garbage bags on the edge & adjacent to [the] public walk during restricted refuse hours of collection." However, Village of Ocean Beach Code § 96-1 provides that "[n]o owner, lessee or occupant of privacy shall place garbage, permit garbage to be placed or allow garbage to remain in place for collection except . . . between the hours to be determined and set by a resolution of the Board of Trustees." The information did not allege that defendant was an owner, a lessee, or an occupant of 440 Dehnhoff Walk. Thus, the information failed to allege every element of the offense. Consequently, the judgment convicting defendant of violating Village of Ocean Beach Code § 96-1 must be reversed and the accusatory instrument charging this offense dismissed.
The information regarding the rental permit violation at 300 Cottage Walk alleged that defendant "was observed renting out property . . . without required rental permit to do so." Village of Ocean Beach Code § 127-4 (A) provides that it is "unlawful to use, occupy, commercially advertise for rent, establish, maintain, operate or let a dwelling unit entirely or for partial occupancy where any rent is paid or charge is made for such use or occupancy . . . without first having obtained a permit therefor." Village of Ocean Beach Code § 127-2 defines "Use" as "any actions of any owner, operator, tenant or subtenant and/or realtor." As defendant concedes that he was acting as a rental agent, the information charging a violation of Village of Ocean Beach Code § 127-4 (A) alleged every element of the offense and was jurisdictionally sufficient.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that defendant's guilt of the rental permit violation (Village of Ocean Beach Code § 127-4 [A]) was established by legally sufficient evidence. An Ocean Beach Village police officer testified that he was told by a group of people that they had rented the house located at 300 Cottage Walk for the weekend of July 3, 2013 from defendant. When defendant arrived at the location, he told the officer that he did not have a rental permit, there was no permit in the window, and that he was the agent who had rented or leased the property to the people for the weekend. We note that there was no requirement that the People prove that the officer actually observed the rental transaction.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zephyrin, 52 AD3d 543, 543 [2008]). Upon a review of the record, we are satisfied that the verdict of guilt regarding the rental permit violation was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Defendant claims that he was denied due process and a fair trial because, among other things, the Justice Court conducted regular court sessions on Saturdays. As a result, the court compelled him to proceed pro se because one of his attorneys observed the Jewish Sabbath. Defendant also contends that the Justice Court should have recused itself.
To the extent that defendant's due process claims relate to six misdemeanors with which he was charged in 2014, those charges are not the subject of this appeal, and any claims arising therefrom cannot be considered.
The transcripts of court appearances clearly show that the court specifically accommodated defendant and his Sabbath-observing attorney by scheduling court appearances on weekdays, including the date of the trial. We note that, on May 29, 2013, a Wednesday, the Justice Court specifically scheduled a conference to accommodate his counsel. However, defendant did not appear in court, because his attorney allegedly told him that he was going to request an adjournment. Defendant did not ascertain whether the adjournment had been granted. In fact, the adjournment was denied, and defendant's attorney informed the court that he had told defendant to be present. Under these circumstances, defendant was not denied due process.
Defendant's claim that the Justice Court should have recused itself is without merit, as, absent a legal disqualification (see Judiciary Law § 14), a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]), and a court's decision in this respect may not be overturned absent an improvident exercise of discretion (see People v Suazo, 120 AD3d 1270, 1271 [2014]; D'Andraia v Pesce, 103 AD3d 770, 771 [2013]; Daulat v Helms Bros., Inc., 57 AD3d 938 [2008]). In this case, we find that the Justice Court did not improvidently exercise its discretion.
Defendant did not raise a vagueness claim in the Justice Court. Thus, his vagueness claim is unpreserved for appellate review (see Mohassel v Fenwick, 5 NY3d 44, 53 [2005]; Matter of Jacqueline S., 284 AD2d 398, 399 [2001]). Moreover, the claim is not properly before this court, as it was not "raised by motion, upon notice to the People, prior to trial and in writing" (People v Peak Carting, Inc., 11 Misc 3d 4, 6 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; see People v Tomossone, 37 Misc 3d 131[A], 2012 NY Slip Op 51978[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). In any event, Village of Ocean Beach Code § 127-4 (A) is not unconstitutionally void for vagueness (see People v Stuart, 100 NY2d 412, 420-421 [2003]; Lighthouse Shores, Inc. v Town of Islip, 41 NY2d 7, 11-12 [1976]; Dua v New York City Dept. of Parks & Recreation, 84 AD3d 596, 598 [2011]; People v Noga, 50 Misc 3d 41, 43 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).
Defendant's remaining contentions are without merit.
Accordingly, the judgments convicting defendant of violating Village of Ocean Beach Code §§ 87-9, 87-10 and 96-1 are reversed, and the accusatory instruments charging these offenses are dismissed. The judgment convicting defendant of violating Village of Ocean Beach Code § 127-4 (A) is affirmed.
Iannacci, J.P., Tolbert and Connolly, JJ., concur. Decision Date: February 22, 2016