People v Ostby

[*1] People v Ostby 2016 NY Slip Op 51865(U) Decided on December 8, 2016 District Court Of Nassau County, First District Kluewer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2016
District Court of Nassau County, First District

The People of the State of New York, Plaintiffs

against

Jeffrey Ostby a/k/a JEFFREY KENNEDY d/b/a KENNEDY RENOVATION, Defendants.



2015NA027475



Honorable Madeline Singas, District Attorney

240 Old Country Road

Mineola, NY 11501

Louise Hochberg, Esq.

1225 Franklin Avenue

Garden City, NY 11530
Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument as facially defective, suppressing identification testimony, directing that the People provide discovery, directing that they serve and file a bill of particulars, and precluding them from cross-examining him about prior acts is granted to the extent that the accusatory instrument is dismissed as facially defective.

On December 16, 2015, the People filed an information accusing Jeffrey Kennedy of 343 Gold Street, Apt 2614, Brooklyn, New York, "d/b/a Kennedy Renovation Company," of conducting a home improvement business without a license in violation of the Nassau County Administrative Code, a class A misdemeanor that is not a printable offense (see Nassau County Administrative Code, Article 21, §§21-11.2, 21-11.15; see also CPL 160.10). By what appears to serve as the factual part (see CPL 100.15[3]), the complainant (see CPL 100,15[1]), Nassau County Consumer Affairs Investigator Mildred Giambalvo, attests that between September 3, 2013 and February 22, 2014 at 29 Indiana Avenue, Long Beach, New York "JEFFREY KENNEDY D/B/A KENNEDY RENOVATION COMPANY" violated Section 21-11.2 of the Nassau County Administrative Code "by entering into a contract with MARIE BASILE for a home improvement job without having and in effect [a] home improvement license issued by the Nassau County Office of Consumer Affairs." These attestations are made on information and belief, the sources of which are the supporting depositions, both of which are attached to the accusatory instrument, of Marie Basile and Joann Bruno. By hers, made on August 31, 2015, Ms. Basile attests that:

"[o]n or about between September 3, 2013 and February 22, 2014, I met with JEFFREY KENNEDY D/B/A KENNEDY RENOVATION COMPANY regarding my home located at 29 Indiana Avenue, Long Beach, Nassau County, New York. I entered into a contract with him for ordering and installation of thirty one windows and two sets of French doors in my house (a copy of the contract is attached hereto and made a part hereof). Pursuant to the contract amount of $21,236.00 I paid JEFFREY KENNEDY D/B/A KENNEDY RENOVATION COMPANY a total of $10,618 but did not receive any windows or doors."

By hers, made August 25, 2015, Ms. Bruno attests that:

"I, Joann Bruno, am the custodian of the records for home improvement records for the Nassau County Office of Consumer Affairs. Consumer Affairs is the [*2]agency responsible for licensing home improvement contractors, as well as maintaining the records concerning their license status and complaint history. All records concerning a contractor license and whether they have a valid license are stored on the computer databases maintained by the Office of Consumer Affairs. These records are created in the regular course of business of the agency. These records are made at or about the time of the events reflected or depicted therein or within a reasonable time thereafter.

"I have checked the records of the agency by searching our computer databases. My record search shows that Jeffrey Kennedy d/b/a Kennedy Renovation Company did not have a valid home improvement license in Nassau County on or about and between September 3, 2013 and February 22, 2014 when the defendant contracted to do work at the home of Marie Basile."

Also attached to the accusatory instrument is a copy of a pre-printed form contract bearing the name "Kennedy Renovation Company" with an address of 146 Spencer Street, Brooklyn, New York. It has hand-written entries reflecting contract terms, and bears the signatures "Marie Basile" and "Jeffrey Kennedy."

According to documents maintained in the court file, as well as the clerk's notations on that file, the People made application for an arrest warrant (see CPL Article 120), which the court (Doddato, J.) issued on December 16, 2015. Included in the court file is a copy of that arrest warrant, issued in the name of Jeffrey Kennedy of 343 Gold Street, Brooklyn, New York. On February 18, 2016, however, the People made application to orally amend the accusatory instrument. No transcript of the proceedings of that date is submitted on this motion, but according to a "script" in a memorandum from one assistant district attorney to another that is included in the court file, the People were to make application to "amend the name on the accusatory instrument to include Jeffrey Kennedy (listed on the complaint) as an AKA for defendant's true name to be added to the complaint - Jeffrey Ostby." The basis for the application is not included in this "script." The court (Siller, J.) obviously granted something, and the caption on the original accusatory instrument now has "A/K/A" handwritten next to the designation of Jeffrey Kennedy as Defendant, and below Mr. Kennedy's "D/B/A" and address, in the caption, are the handwritten words "AMEND: JEFFREY OSTBY." The notations on the court filed for February 18, 2016 reflect "ORIGINAL WARRANT VACATED NEW WARRANT TO ISSUE." Included in the court file is a copy of an arrest warrant which the court (Meli, J.) issued in the name of Jeffrey Ostby, also ostensibly of 343 Gold Street, Brooklyn, New York. According to the notations on the court file, Jeffrey Ostby was brought in on the executed arrest warrant on March 16, 2016 — some 91 days after [*3]commencement of the action (see CPL 1.20[16]). At Defendant's arraignment on that date, the court set bail at $5000 cash or bond, which bond, in the name of Jeffrey Ostby, has been posted. According to handwritten changes on the court file, Jeffrey Ostby's address is 1390 5th Avenue, New York, NY.

Defendant, Mr. Ostby, now moves for the above-noted relief. Insofar as he seeks dismissal of the accusatory instrument, he notes that all of the allegations are made against "Jeffrey Kennedy" doing business as "Kennedy Renovation Company," that no mention is made of him, Jeffrey Ostby, except for one reference in the caption, that a defendant's commission of the crime must be spelled out in the accusatory instrument, that he, Jeffrey Ostby, and Jeffrey Kennedy "are two different people," and that "[t]his is a case where the police got the wrong guy." He also addresses his requests for other, obviously alternate relief.

The People in opposition set forth some of the facts. They in the process cavalierly assume Jeffrey Ostby and Jeffrey Kennedy are the same person, erroneously claim that Defendant "failed to appear" on February 18, 2016, when, as the present record indicates, the court on that date court issued an arrest warrant that was executed almost one month later, set forth some generic principles governing the sufficiency of local court accusatory instruments, and urge that the supporting depositions in this case provide non-hearsay, non-conclusory attestations that properly support the accusation that "Defendant" violated the statute with which he is charged. They thus proceed as if the name Jeffrey Ostby is included in the factual statements made by Ms. Basile and Ms. Bruno, posit that the claim that these are two different people "is irrelevant to the issue of facial insufficiency and instead is an issue for trial, one that should be addressed by the finder of fact," urge that when a person is known by more than one name, any name by which that person is known can be used in the accusatory instrument, and offer the theory that the accusatory instrument was amended "based upon the information and belief that Defendant was using the alias, Jeffrey Kennedy [emphasis added]" when he was conducting business with Ms. Basile. They, too, address Defendant's requests for other, alternate relief.

Defendant in reply purports to give "notice of supplemental motion" so as to interpose a request for an order dismissing "the complaint" as improperly amended. He disputes the People's assertion that the present accusatory instrument properly demonstrates that he committed the offense charged, asserts that the supporting depositions do not "cure the problem," and notes that attestations about the search of the Office of Consumer Affairs records may [*4]demonstrate that Jeffrey Kennedy and his company do not have the requisite license, but that no such demonstration has been made with respect to him, Jeffrey Ostby. He also addresses his newly interposed claim for dismissal because of improper amendment, itself improperly interposed for the first time in reply. The arguments he advances in this regard — e.g., that the change in name of the party is unsupported by allegations; that there is no attestation demonstrating that he is, or has ever been known as Jeffrey Kennedy — are, however, variations of and elaborations on his dispositive claim that the accusatory instrument is defective.

It is well settled that, in order to be sufficient, a long form information must both provide reasonable cause to believe that the person named in it committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and that person's commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept. 1994]; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc 2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). The information thus must demonstrate the existence of a prima facie case against the person charged (see People v Henderson, supra), but the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Grabinski, 189 Misc 2d 307, 731 NYS2d 583 [App Term 2d Dept 2001]; People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

Section 21-11.2 of the Nassau County Administrative Code provides that "no person shall own, operate, engage in or transact a home improvement business after January 1, 1972, or hold himself [or herself] out as being able to do so unless he [or she] is licensed therefor pursuant to this title." It may be that the accusatory instrument filed here establishes both a prima facie case that Jeffrey Kennedy entered into a home improvement contract with Ms. Basile, thus conducting a home improvement business (see Nassau County Administrative [*5]Code, Article 21, §21-11.1[3]), and that the Office of Consumer Affairs records, and the search of them, are sufficiently reliable to demonstrate, for pleading purposes, that neither Jeffrey Kennedy nor "Kennedy Renovation Company" had the requisite license at the pertinent time (see People v. Burak, nor 2008 NY Slip Op 51883 [Nassau Dist Ct 2008]). But while the court apparently did allow amendment of the caption, it did not purport to change the sworn statements of others, nor could it properly do so. There is thus no sworn, non-hearsay attestation demonstrating either that Jeffrey Ostby entered into a home improvement contract with Ms. Basile or that he was not properly licensed. Indeed, because there is no indication whatsoever that Ms. Bruno, or anyone else, searched the Office of Consumer Affairs records to determine whether Jeffrey Ostby had the requisite license, dismissal on that basis alone would be warranted, even if the accusatory instrument were otherwise adequate (cf. id.). And if the People wish to proceed on the claim that Jeffrey Kennedy and Jeffrey Ostby are the same person, they cannot rely on some unsubstantiated, unsworn "information and belief" assertion, made outside the four corners of the accusatory instrument, about the use of aliases. They must instead make the appropriate prima facie demonstration within the confines of the accusatory instrument. Since they have not done so, Defendant's application to dismiss the accusatory instrument is granted.

In light of the foregoing, I do not reach Defendant's requests for other relief

So Ordered.