People v Farella (Raffaelle)

[*1] People v Farella (Raffaelle) 2008 NY Slip Op 51129(U) [19 Misc 3d 145(A)] Decided on May 29, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2006-1472 S CR.

The People of the State of New York, Respondent,

against

Raffaelle Farella, Jr., Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Toni A. Bean, J.), rendered August 16, 2006. The judgment convicted defendant, after a nonjury trial, of engaging in a business as a home improvement contractor without a license.

Judgment of conviction reversed on the law, fine, if paid, remitted, and matter remanded to the court below for further proceedings.

The accusatory instrument is facially sufficient in both the accusatory portion and the supporting facts. The accusatory instrument tracked the language of Suffolk County Code § 345-17(A) (see People v Yakubova, 11 AD3d 644, 645 [2004]; People v Prevete, 10 Misc 3d 78, 80 [App Term, 9th & 10th Jud Dists 2005]), and affording the
factual portion, as supplemented by the supporting depositions, a "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), the instrument sufficed, for pleading purposes, to allege that the offense was committed at a premises to which the sanction applies. Morever, it is not necessary that an accusatory instrument incorporate therein exclusions not contained in the statute or ordinance itself. The "[e]ssential allegations are generally determined by the [law] defining the crime. If the defining [sanction] contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the [sanction], the exception generally is [a proviso which represents] a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" (People v Kohut, 30 NY2d 183, 187 [1972]; see also People v Santana, 7 NY3d 234 [*2][2006]). Here, the exclusion for unlicensed home improvement work performed on homes where three or more families reside (Suffolk County Code § 345-16) is not part of the defining sanction, but merely "a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial" (People v Santana, 7 NY3d at 236).

However, as the People properly concede, the record does not disclose that defendant executed a written jury trial waiver in accordance with CPL 320.10. Accordingly, the judgment of conviction is reversed and a new trial ordered (e.g. People
v Lewis, 308 AD2d 550, 551 [2003]; People v Baer, 265 AD2d 335 [1999]; People v Davidson, 136 AD2d 66, 70 [1988]; People v Quinn, 158 Misc 2d 1015, 1016 [App Term, 9th & 10th Jud Dists 1993]; see also People v Zawistowski, 168 AD2d 950 [1990]).

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: May 29, 2008