People v Apollo (Rose)

[*1] People v Apollo (Rose) 2005 NY Slip Op 52117(U) [10 Misc 3d 135(A)] Decided on December 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
NOS. 2004-1411 S CR and 2005-767 S CR

THE PEOPLE OF THE STATE OF NEW YORK Respondent,

against

Rose Apollo, Appellant.

Appeals from judgments of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), rendered on August 3, 2004 and April 12, 2005. The judgments entered August 3, 2004 convicted defendant of two violations of section 55-18.3 (A) of the Sag Harbor Village Code and one violation of section 55-18.6 (A) of said code. The judgments entered April 12, 2005 convicted defendant of two violations of section 55-18.3 (A) of said code.

Judgments of conviction unanimously reversed on the law, accusatory instruments dismissed and fines, if paid, remitted.

It should be noted at the outset that the appeals were consolidated for the purposes of disposition.

The record herein contained only an appearance ticket/summons relative to the alleged violation of section 55-18.6 (A) of the Sag Harbor Village Code. It is well settled that appearance tickets/summonses are not accusatory instruments and their filing does not give a criminal court jurisdiction over the named defendant (see CPL 150.10, 150.50; see also People v Cooperman and O'Dell, NYLJ, June 17, 1989 [App Term, 9th & 10th Jud Dists]). Since there is no indication upon this record that the People filed a proper accusatory instrument with the court (see CPL 150.50), the court never acquired jurisdiction and dismissal of the summons relative to said charge is mandated (see People v Passalacqua, 7 Misc 3d 131[A], 2005 NY Slip Op [*2]50554[U] [App Term, 9th & 10th Jud Dists]; People v Curtin, 3 Misc 3d 134[A], 2004 NY Slip Op 50455[U] [App Term, 9th & 10th Jud Dists]).

The remaining accusatory instruments alleged violations of section 55-18.3 (A) of the Sag Harbor Village Code and define the violations as follows: "It shall be unlawful to use or to permit the use of any building, structure, premises, lot or land, or part thereof, hereafter erected or altered, enlarged or moved or put into use, in whole or in part, or as to which there has been a change in ownership, after the effective date of this chapteror to use or to permit the use of any building, structure, premises, lot or land, or part thereof, of which the use is changed until a certificate of occupancy has been obtained by the owner."
The record herein established that a certificate of occupancy did in fact exist permitting use of the subject premises as a retail food store and that the premises was in fact used for said purpose. The People, however, alleged facts in the informations, to which defendant pleaded guilty, of having an accessory use that was not authorized under the code and prohibited by the certificate of occupancy. Although said facts may constitute a violation of other sections of the code (see e.g. Sag Harbor Village Code §§ 55-8.4 [G], 55-18.6 [A]), they do not constitute a violation of the offense charged. We note that the defects in the accusatory instruments were not mere misnomers in citation of the section of the code allegedly violated as the facts set forth in the factual parts did not establish the elements charged in the accusatory parts. In view of the foregoing, the judgments of conviction must be reversed and the informations dismissed (see CPL 100.15, 100.40 [1]; cf. People v Turpin, 8 Misc 3d 128[A], 2005 NY Slip Op 50970[U] [App Term, 9th & 10th Jud Dists]).
Decision Date: December 05, 2005