People v Lubrano (Thomas)

[*1] People v Lubrano (Thomas) 2007 NY Slip Op 52354(U) [18 Misc 3d 126(A)] Decided on December 13, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and SCHEINKMAN, JJ
2006-844 S CR.

The People of the State of New York,, Respondent,

against

Thomas A. Lubrano, Appellant.

Appeal from five judgments of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), rendered March 30, 2006. The judgments, after a nonjury trial, convicted defendant of two charges of violating section 45-6 and three charges of violating section 85-356 (A) of the Code of the Town of Brookhaven.

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

A review of the record in the instant case reveals that the informations were jurisdictionally defective. In People v Casey (95 NY2d 354), the Court of Appeals stated, at page 360, as follows:
"The procedural requirements for the factual portion of a local criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15 [3]; see, CPL 100.40 [1] [a]; that the allegations of the factual part * * * together with those of any supporting depositions * * * provide reasonable cause to believe that the defendant committed the offense charged' (CPL 100.40 [1] [b]); and that the [n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40 [1] [[c]; see, CPL 100.15 [3]).
So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately [*2]detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see, People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Shea, 68 Misc 2d 271, 272; see also People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733)."

With regard to the second and fifth charges of violating section 45-6 of the Code of the Town of Brookhaven, the informations charging same are conclusory and lack any specificity as to how the unregistered vehicle failed to meet the requirements of said section so as not to permit its storage on defendant's property. Accordingly, said accusatory instruments were jurisdictionally defective and must be dismissed.

Further, as to the first, third and fourth charges of violating section 85-356 (A) of said Code, defendant was charged with "parking" a boat and trailer on the subject premises. However, as can be seen from a review of said section, only the "storage" of a boat and trailer is prohibited. Since defendant was charged in the informations with "parking" same rather than "storing" same, said accusatory instruments were jurisdictionally defective and must be dismissed.

Rudolph, P.J., LaCava and Scheinkman, JJ., concur.
Decision Date: December 13, 2007