People v Keen Equities

[*1] People v Keen Equities 2012 NY Slip Op 51438(U) Decided on July 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2011-402 OR CR.

The People of the State of New York, Appellant,

against

Keen Equities, Respondent.

Appeal from an order of the Justice Court of Blooming Grove, Orange County (Christopher J. Turpin, J), dated January 6, 2011. The order granted defendant's motion to dismiss the accusatory instrument on statutory speed trial grounds.

ORDERED that the order is affirmed.

On February 3, 2010, defendant corporation was charged in a single accusatory instrument with exposure of sewage (South Blooming Grove Village Code § 88-03), performing work without obtaining required approvals (South Blooming Grove Village Code § 88-06) and failure to comply with existing facilities requirements (South Blooming Grove Village Code § 88-13). On that same day, the Village of South Blooming Grove Building Inspector issued three appearance tickets requiring defendant to appear at the Justice Court on February 25, 2010 to answer each of the charges contained in the accusatory instrument.

In a letter dated February 19, 2010, defendant's attorney advised the court that defendant would not appear, as the appearance tickets issued by the Building Inspector were "nullit[ies]." In a letter dated February 24, 2010, defendant's attorney declined the court's invitation to appear for the purpose of arguing the validity of the appearance tickets. On March 25, 2010, the People appeared and submitted a letter to the court acknowledging defendant's previous advisement that it would not appear and requesting that the court issue a criminal summons to obtain defendant's [*2]appearance. On May 3, 2010, the court signed a criminal summons which directed defendant to appear on all three charges on May 13, 2010.

On May 13, 2010, defendant's attorney submitted a letter requesting a one month adjournment on consent. The court granted the adjournment and set the matter down for June 25, 2010. On June 25, 2010, the People and defendant appeared and the People announced their readiness for trial. On October 15, 2010, defendant filed a motion to dismiss based on statutory speedy trial grounds. Thereafter, the Justice Court granted defendant's motion to dismiss.

We find that the Justice Court properly dismissed the accusatory instrument. Contrary to the People's contentions, the Building Inspector was not authorized to issue
an appearance ticket pursuant to Municipal Home Rule Law § 10 (4) (a). While the South Blooming Grove Village Code authorizes the Building Inspector to issue appearance tickets for other violations found within the Village Code as well as for violations of some provisions found outside the Village Code (see South Blooming Grove Village Code § 70-15 [B]), there is no authority for the Building Inspector's issuance of appearance tickets for violations of article 1 of chapter 88 of the South Blooming Grove Village Code (see South Blooming Grove Village Code chapter 88, article I). Thus, the appearance tickets involved herein, charging violations of code provisions found within article 1 of chapter 88 were not validly issued pursuant to CPL 150.20 (3), and the criminal summons issued by the Justice Court cannot be deemed to constitute a validly issued appearance ticket (see People v Smietana, 98 NY2d 336, 340 [2002] [implicitly finding that a summons issued by the City Court was not the equivalent of a police-issued appearance ticket and thus would not be given CPL 30.30 (5) (b) treatment]). Consequently, for speedy trial purposes, the action cannot be deemed to have commenced on the date defendant first appeared in court, as would have been the case had there have been validly issued appearance tickets (see CPL 30.30 [5] [b]; People v Smietana, 98 NY2d at 340-342). Rather, the action commenced, for speedy trial purposes, upon the filing of the accusatory instrument (CPL 30.30 [1]; 100.05; see People v Smietana, 98 NY2d at 340-342).

The charged offenses are designated as misdemeanors in § 88-14 (A) of the Village Code. However, notwithstanding such designation, as the offenses carry a maximum term of imprisonment of 15 days, they are classified as violations under the Penal Law (see Penal Law § 55.10 [3] [a]). Since the accusatory instrument was filed with the court on February 3, 2010, and the People failed to declare their readiness within the applicable 30-day time period (CPL 30.30 [1] [d]), or set forth meritorious arguments regarding excludable time (CPL 30.30 [4]), defendant's speedy-trial motion was properly granted.

We note that no sufficient "periods of delay occasioned by exceptional circumstances" (CPL 30.30 [4] [g]) have been shown to exist (cf. People v Smietana, 98 NY2d at 340-343) which would affect the outcome since the People were aware of the charges as early as March 25, 2010, when they appeared in court. Thus, even excluding the period from February 3, 2010 when the accusatory instrument was filed, to March 25, 2010, when the People clearly were aware of the charges, over 30 days had expired prior to May 13, 2010 (the 49th day), when defendant consented to a one-month adjournment and the People had still not declared readiness.

Accordingly, the order is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur. [*3]
Decision Date: July 17, 2012