People v Sutton (Sean)

[*1] People v Sutton (Sean) 2015 NY Slip Op 50901(U) Decided on June 17, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 17, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570546/09

The People of the State of New York, Respondent,

against

Sean Sutton, Defendant-Appellant,

In consolidated criminal actions, defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John J. Delury, J.H.O.), rendered June 18, 2009, after a nonjury trial, convicting him of causing unreasonable noise, operating a circulation device in excess of 42 decibels, and failing to comply with a police officer's order, and imposing sentence.

Per Curiam.

Judgment of conviction (John J. Delury, J.H.O.), rendered June 18, 2009, modified, on the law and the facts, to the extent of vacating defendant's convictions of causing unreasonable noise and operating a circulation device in excess of 42 decibels, and dismissing the accusatory instruments relating thereto; as modified, judgment affirmed.

Defendant was charged with, inter alia, causing unreasonable noise (see Administrative Code of City of NY § 24-218) and operating a circulation device in excess of 42 decibels (see Administrative Code § 24-227). At the truncated Summons Part trial, the testimony of the Police Officer who issued the summonses was brief and conclusory, consisting of less than one page of testimony. The officer stated only that an "altered muffler" on defendant's Toyota vehicle "created an unreasonable amount of noise and a loud rumbling." This testimony was, at best, ambiguous as to the volume of the noise emanating from defendant's vehicle and, upon our independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we find it to be insufficient to establish beyond a reasonable doubt that defendant was guilty of causing "unreasonable noise" as that term is defined in the Code, namely, "any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities, injures or endangers the health or safety of a reasonable person of normal sensitivities or which causes injury to plant or animal life, or damage to property or business" (Administrative Code § 24-203[62]; see Administrative Code § 24-218[b]; 530 W. 28th St. LP v New York State Liq. Auth., 55 AD3d 436 [2008]; see also People v Bakolas, 59 NY2d 51 [1983]).

As the People concede, the accusatory instrument charging defendant with operating a circulation device in excess of 42 decibels (see Administrative Code § 24-227) was [*2]jurisdictionally defective because the muffler on defendant's automobile was not a "circulation device" (see Administrative Code §§ 24-203[17], [39]) and, in any event, the accusatory instrument did not allege that the muffler created a sound "in excess of 42 [decibels]" (see Administrative Code § 24-227[a]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 17, 2015