People v Schmidt (Christine)

[*1] People v Schmidt (Christine) 2005 NYSlipOp 50487(U) Decided on April 6, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS -x PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-754 N CR -x

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

against

CHRISTINE SCHMIDT, Respondent. -x

Appeal by the People from an order of the Justice Court, Village of Freeport, Nassau County (V. R. Cacciatore, J.), dated November 14, 2003, which granted defendant's motion insofar as it sought to dismiss the accusatory instrument.

Order unanimously reversed on the law, that branch of defendant's motion seeking to dismiss the accusatory instrument denied, accusatory instrument reinstated and matter remanded to the court below for determination of the remaining branches of defendant's motion and for all further proceedings.

In the case at bar, the court granted defendant's omnibus motion to the extent of dismissing the accusatory instrument as being jurisdictionally defective in that it failed to state the basis of the complainant's knowledge with regard to defendant's ownership of the premises. In reaching this result, the Justice Court relied on this court's holding in People v Vecce, NYLJ, May 26, 1999, at 30, col 2 [App Term, 9th & 10th Jud Dists]). Subsequent to said decision, this court, in reliance upon the Court of Appeals decision in People v Casey (95 NY2d 354, 360 [2000]), held that the "fair implication of said statements, including ownership by a town's code inspector, established the inspector's firsthand knowledge of such facts and that any challenge to the source or validity of the complainant's knowledge is a matter to be raised as an evidentiary defense at trial" and, as a result, "this courts holding in People v Vecce (supra) will no longer be followed" (People v Hall, 4 Misc 3d 60, 63 [App Term, 9th & 10th Jud Dists 2004]; see People v [*2]Sikorsky, 195 Misc 2d 534 [App Term, 9th & 10th Jud Dists 2002]). Accordingly, the branch of defendant's motion seeking dismissal of the accusatory instrument is denied, the accusatory instrument is reinstated and the matter is remanded to the court below for determination of the remaining branches of defendant's motion and for all further proceedings.
Decision Date: April 06, 2005