People v Ettie Props., Inc.

[*1] People v Ettie Props., Inc. 2012 NY Slip Op 50693(U) Decided on April 13, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., MOLIA and IANNACCI, JJ
2010-1641 N CR.

The People of the State of New York, Respondent,

against

Ettie Properties, Inc. and ISAAC HERSHKO Also Known as ITZCHAK HERSHKO, Appellants.

Appeal from six judgments of the Justice Court of the Village of Cedarhurst, Nassau County (Andrew S. Goldsmith, J.), rendered April 14, 2010. Three of the judgments convicted defendant Ettie Properties, Inc., and three of the judgments convicted Isaac Hershko also known as Itzchak Hershko, after a nonjury trial, of authorizing the installation of electrical equipment and the performance of electrical work without a permit, authorizing the commencement and continuation of construction alteration and change of occupancy without obtaining a building permit and violating a posted stop work order, respectively.

ORDERED that the judgments of conviction are reversed, on the law, and the accusatory instruments are dismissed.

Each defendant was charged in three separate prosecutor's informations with, respectively, authorizing the installation of electrical equipment and the performance of electrical work without a permit (Village of Cedarhurst Code § 119-6), authorizing the commencement and continuation of construction alteration and change of occupancy without obtaining a building permit (Village of Cedarhurst Code § 95-17) and violating a posted stop work order (Village of Cedarhurst Code § 95-14 [A]). Following a nonjury trial, defendants were convicted of the charged offenses.

Upon a review of the six accusatory instruments, we find that they are jurisdictionally defective and must be dismissed (see generally People v Eager Beaver Tree Service, 23 Misc 3d 131[A], 2009 NY Slip Op 50663[U] [App Term, 9th & 10th Jud Dists 2009]). The accusatory instruments charging defendants with performing electrical work without a permit (Village of Cedarhurst Code § 119-6) fail to contain allegations that the value of the work allegedly performed exceeded $500 or that the work was performed in the absence of an emergency. The accusatory instruments charging defendants with building without a permit (Village of Cedarhurst Code § 95-17) fail to allege that the work purportedly performed was not undertaken to make ordinary repairs and that the value of the work was $500 or more in cost. Absent these required elements of the respective offenses, these accusatory instruments fail to "establish, if true," that defendant committed the charged offenses (see CPL 100.40 [1] [c]; People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010]; [*2]People v Raskin, 21 Misc 3d 137[A], 2008 NY Slip Op 52230[U] [App Term, 9th & 10th Jud Dists 2008]).

The accusatory instruments charging defendants with violating a stop work order (Village of Cedarhurst Code § 95-14 [A]) fail to set forth allegations of an "evidentiary character" supporting or tending to support the charge (see CPL 100.15 [3]; 100.40 [1] [a]). Section 95-14 (A) provides that a stop work order is duly issued when work is being performed in violation of "the applicable building laws, ordinances or regulations or not in conformity with the provisions of an application, plans or specifications on the basis of which a building permit was issued or in an unsafe and dangerous manner." The statement in both accusatory instruments that the defendant named therein "continued to illegally install construction materials and make alterations thereat" is conclusory, rather than evidentiary, as there are no allegations establishing in what way this work was unauthorized or in violation of applicable building laws or permits (see People v Curiale, 20 Misc 3d 133[A], 2008 NY Slip Op 51465[U] [App Tem, 9th & 10th Jud Dists 2008]). Thus, these accusatory instruments are jurisdictionally defective and must be dismissed.

Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed. In view of the foregoing, we pass on no other issue. LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: April 13, 2012