People v Gelb

[*1] People v Gelb 2012 NY Slip Op 52131(U) Decided on November 14, 2012 District Court Of Suffolk County, First District Ford, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2012
District Court of Suffolk County, First District

The People of the State of New York, Plaintiff,

against

Robert D. Gelb, Defendant.



2011SU046133



Appearances of Counsel:

For the defendant: Brian D. Bass

Farr and Bass

Bohemia, NY

For the People:ADA Karen E. Seidler, for Thomas Spota

Suffolk County District Attorney

William G. Ford, J.

The defendant is charged with a violation of Suffolk County Code §214-14 [renumbered as §294-8 by LL. No. 35-2007], commonly known as the "Social Host Law." The defendant now moves to dismiss the accusatory instrument for insufficiency or for Wade relief. The Court notes that there exists a companion case herein (Dkt. No. 2011SU-046132), charging one Lorri Gelb with the same offense based upon the same incident, that a motion to dismiss same has been filed and that said motion will be decided under that docket number.

The factual allegations of the within information state that the defendant " did knowing [sic] allow approximately (30) minors, all under the age of twenty-one, sixteen through eighteen years of age, consume alcoholic beverages at his residence. The defendant failed to take the appropriate corrective action upon learning of the consumption of alcoholic beverages and allowed the minors to remain on his property. Said incident occurred inside, as well as outside, the residence of 3 Village Hill Drive, in the Town of Huntington, County of Suffolk, State of New York." The factual allegations are stated to be "made by the Complainant herein [on direct knowledge and/or [emphasis supplied] upon information and belief, with the sources of Complainant's information and the grounds for belief being the facts contained in the attached SUPPORTING DEPOSITION(S) of: Michelle M. Page, Paul R. Katz, Amanda Zemaitis, Brittany Burbell, Russell B. Somer." The complainant is listed as Investigator James A. Chadwick, Jr. of the New York State Police.

The applicable statute reads, in pertinent part, as follows: [*2]

It shall be unlawful for any person over the age of 18 who owns, rents, orotherwise controls a private residence to knowingly allow the consumption ofalcohol or alcoholic beverages by any minor on such premises or to fail to takereasonable corrective action upon learning of the consumption of alcohol oralcoholic beverages by any minor on such premises.

Upon review of the accusatory instrument and its accompanying supporting depositions, this Court finds that the defendant's motion to dismiss on sufficiency grounds must be granted. Initially, the Court notes that failure to specify whether an information is based upon personal

Page 2

knowledge or information and belief renders same facially defective. (See People v. Lakshman, 99-932 S CR, May 2, 2000 [App Term, 2d Dep't, 9th & 10th Jud Dis'ts]). It has also been held that, when it was "not clear from a facial examination of the information" whether an allegation

supporting an element of an offense charged was based upon hearsay or personal knowledge, the information was subject to dismissal "because it [could not] be determined upon the face of the information whether the pleading [wa]s in compliance with CPL 100.40(1)(c)." (See People v. Casey, 95 NY2d 354). Although it has been held that an allegation by a police officer complainant that he had personal knowledge of a particular fact does meet the non-hearsay standards for an information (see People v. Milowski, People v. Netusil, 34 Misc 3d 137(A) [App Term, 2nd Dept, 9th & 10th Jud Dists 2011]), the complainant in the information sub judice fails to unequivocally state a personal knowledge basis due to the use of the "and/or" form.

Additionally, although the information alleges that the events occurred at the defendant's residence, the allegations fail to provide any nonhearsay factual support for that element. The supporting depositions merely state that the party was being held at "Zachary Gelb's house" or that Zachary Gelb was "hosting" or "having" a party at 3 Village Hill Drive, where Zachary Gelb allegedly lived. The information fails to demonstrate that the named defendant Robert D. Gelb "owns, rents, or otherwise controls" the incident location. Furthermore, although there are references to "two adults at the house, one male and one female", "an older male and female", "Zach's parents" and "Zach's Dad", none of the supporting depositions actually identifies Robert D. Gelb as being present or having the requisite relationship with the property in question.

It has been held that the sufficiency of an accusatory instrument must be evaluated from the four corners of the instrument. (See People v. Thomas, 4 NY3d 143; People v. Crisofulli, 91 Misc 2d 424). It is the opinion of the Court that the information sub judice, when read in conjunction with its accompanying supporting depositions, fails to provide the requisite [*3]nonhearsay facts of an evidentiary character demonstrating, if true, every element of the offense charged and the defendant's commission thereof. (See CPL 100.40, 100.15).

Accordingly, the defendant's motion to dismiss the within docket charging a violation of Suffolk County Code §214-14 is granted on sufficiency grounds. Parenthetically, the Court notes that no charge of endangering the welfare of a child (PL §260.10) has been filed in this matter.

By reason of the foregoing, the remainder of the defendant's motion is denied as moot. Upon issuance of the accompanying order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40.

______________________________

J.D.C.