People v Baumann & Sons Buses, Inc.

[*1] People v Baumann & Sons Buses, Inc. 2005 NYSlipOp 50488(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-1177 S CR x

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

BAUMANN & SONS BUSES, INC., Appellant. x

Appeal by defendant from a judgment of the District Court, Suffolk County (J. Flanagan, J.), rendered April 20, 2004, convicting it of violating Islip Town Code § 35-3 (D) and imposing sentence.

Judgment of conviction unanimously reversed on the law, information dismissed and fine remitted.

It is well settled that anti-noise statutes are designed to prevent those noises which are of such a pitch as to constitute a public nuisance and a wrong against the community, and are therefore the proper subject of public prosecution (see People v Rubenfeld, 254 NY 245, 247 [1930]; People v Kings County Iron Foundry, 209 NY 207,
210 [1913]). These statutes are reserved for situations that go beyond the concern of the individual to a point where they become a potential or an immediate public problem (see People v Munafo, 50 NY2d 326 [1980]; People v Chesnick, 302 NY 58 [1950]). In deciding whether an act carries public ramifications, courts have considered the nature and number of persons affected, as well as the surrounding circumstances, including, but not limited to, the time and place of the episode (People v Munafo, 50 NY2d at 331). In the instant matter, the accusatory instrument alleged that the idling of the engines of defendant's buses created an unreasonable noise, in that the noise disturbed the complainant on private property. However, it failed to allege the public nature of the nuisance (see People v Canner, 40 NY2d 886 [1976]; People v Proscia, 2002 NY Slip Op 40437[U] [App Term, 9th & 10th Jud Dists], lv denied 99 NY2d 538 [*2][2002]; People v Gratz, NYLJ, June 5, 1995 [App Term, 9th and 10th Jud Dists]; People v Marvinney, NYLJ, Mar. 18, 1994 [App Term, 9th and 10th Jud Dists]). Accordingly, the accusatory instrument is defective and defendant's conviction of violating Islip Town Code § 35-3 (D) is reversed.
Decision Date: April 06, 2005