People v Vagt (Miriam)

[*1] People v Vagt (Miriam) 2007 NY Slip Op 52438(U) [18 Misc 3d 128(A)] Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2007-260 W CR.

The People of the State of New York, Respondent,

against

Miriam S. Vagt, Appellant.

Appeal from a judgment of the Justice Court of the Village of Scarsdale, Westchester County (John H. Galloway, III, J.), rendered on August 11, 2006. The judgment convicted defendant, after a nonjury trial, of four counts of removal, cutting and trimming in public places.

Judgment of conviction reversed on the law, accusatory instrument dismissed and fines, if paid, remitted.

Scarsdale Village Code section 281-11, entitled "Removal, cutting and trimming in public places," provides that, with certain exceptions not relevant here, "no person shall remove, kill, cut, break or trim any tree, shrub or plant in any street, park or other public place in the Village . . ., without first securing a written permit from the Village Naturalist . . . ." An information, accompanied by an appearance ticket dated November 19, 2004, charged defendant with four counts of violating this ordinance (the four counts pertained to four trees). On January 25, 2005, a superseding information was filed charging defendant with the same offenses. Attached to the superseding information were an affidavit, a copy of the original information, and four photographs.

In order for an information including a superseding information to be sufficient on its face, its factual portion, together with any supporting depositions, must contain allegations that, if true, establish every element of the offense charged and the defendant's commission of such [*2]offense (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d 133 [1987]; see People v Thomas, 4 NY3d 143, 146 [2005]). The superseding information here did not meet this test. Even if all of the factual allegations of the superseding information, the attached affidavit, and the attached original information are true, they would not establish that defendant cut or removed trees in a public place. Rather, they would establish only that she cut and removed village-owned trees on land apparently belonging to a private entity. This is not what the ordinance forbids. In the absence of any reference to the photographs in the accusatory instrument or the documents attached to it, the photographs cannot cure the defect in the accusatory
instrument. This defect in the information is jurisdictional, and the information must therefore be dismissed (see People v Alejandro, 70 NY2d 133 [1987], supra).In view of our disposition of this matter, we do not address any other issues.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: December 21, 2007