People v M. Santulli, LLC

[*1] People v M. Santulli, LLC 2010 NY Slip Op 51449(U) [28 Misc 3d 136(A)] Decided on August 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and IANNACCI, JJ
2009-1035 S CR.

The People of the State of New York, Respondent,

against

M. Santulli, LLC, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Sixth District (Kevin J. Crowley, J., on omnibus motion; Stephen L. Ukeiley, J., at trial and sentencing), rendered April 17, 2009. The judgment convicted defendant, after a nonjury trial, of violating Brookhaven Town Code § 16-3. The appeal brings up for review, among other things, the denial of the branch of defendant's omnibus motion which sought the suppression of evidence.

ORDERED that the judgment of conviction is reversed, on the law, and the information is dismissed.

Defendant was charged with, and, after a nonjury trial, convicted of, violating Brookhaven Town Code § 16-3 ("Permit required; inspection; information to be submitted"). This ordinance provided, in relevant part:
"A. No wall, structure, plumbing, building or part thereof shall hereafter be built, installed, enlarged or altered until a plan of the proposed work, together with all other documents determined to be necessary by the Chief Building Inspector, shall have been submitted to the Chief Building Inspector or other Building and Zoning Inspector or other Building Inspector, who shall, if in accordance with the provisions herein contained, issue a permit for the proposed construction, in accordance with all applicable codes and regulations . . .
B. Structures or plumbing hereafter erected or installed without a permit or not in conformity with this chapter shall be removed or made to conform to the code."

Upon our review of the record, we conclude that the information is jurisdictionally defective. With respect to subdivision A of the ordinance, the jurisdictional defect in the information is that its factual allegations, even if given a "reasonable, not overly technical [*2]reading" (People v Konieczny, 2 NY3d 569, 576 [2004]), do not "establish, if true" (CPL 100.40 [1] [c]), the element of the offense that defendant did any "buil[ding], install[ing], enlarg[ing] or alter[ing]" (Brookhaven Town Code § 16-3 [A]; see People v Jones, 9 NY3d 259, 262 [2007]; People v Alejandro, 70 NY2d 133, 134-135 [1987]). The information alleges only that the premises "had been altered," and thus does not allege that any alteration took place while defendant owned the property (see People v Caravousanos, 2 Misc 3d 7, 10 [App Term, 9th & 10th Jud Dists 2003]; People v Cullen, 195 Misc 2d 692, 695 [App Term, 9th & 10th Jud Dists 2003]; see also People v Anmar Realty, LLC, 26 Misc 3d 144[A], 2010 NY Slip Op 50423[U] [App Term, 9th & 10th Jud Dists 2010]). Had the People wished to prosecute defendant for, in effect, the failure to correct a violation, they should have charged defendant under Brookhaven Town Code § 16-6 (D) (now § 16-7 [D]), which imposes liability on "[t]he owner or owners of any building or premises or part thereof . . . where any violation of this ordinance has been committed or shall exist . . ."

Furthermore, liability under both subdivisions of the ordinance must be tied to work that was performed after the effective date of the ordinance. The allegations of the information fail to give the date of the alleged alteration, and thus do not "establish, if true" (CPL 100.40 [1] [c]), that the altering took place after the effective date.

Accordingly, the judgment of conviction is reversed and the information is dismissed. In view of our disposition, we pass on no other issue.
Tanenbaum, J.P., and Iannacci, J., concur.

Molia, J., taking no part.
Decision Date: August 10, 2010