People v Santulli (Michael)

[*1] People v Santulli (Michael) 2010 NY Slip Op 51450(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-1071 S CR.

The People of the State of New York, Respondent,

against

Michael Santulli, Appellant.

Appeal from two judgments of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J., on omnibus motion order; Stephen L. Ukeiley, J., on speedy trial order, plea, and sentencing), rendered May 1, 2009. The judgments convicted defendant, upon his guilty pleas, of violating Brookhaven Town Code §§ 85-17 and 85-20, respectively.

ORDERED that the judgments of conviction are reversed, on the law, and the informations are dismissed.

Defendant pleaded guilty to violating Brookhaven Town Code § 85-17 ("Issuance of building permits or universal design permits; restrictive covenants") and Brookhaven Town Code § 85-20 ("Certificates of occupancy"). The guilty pleas were entered under
two informations charging, respectively, violations of Brookhaven Town Code § 16-3 ("Permit required; inspection; information to be submitted") and Brookhaven Town Code § 16-4 ("Certificates of occupancy"). Upon our review of the record, we conclude that both informations are jurisdictionally defective.

With respect to the information charging a violation of Brookhaven Town Code § 16-3, this section 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 a statement of the materials to be used, shall have been submitted in duplicate to the Chief Building Inspector or other authorized agent, who shall, if in accordance with the provisions herein contained, issue a permit for the proposed construction."
The information alleges that, on the date in question, defendant was "the owner, principal agent for and controlled M. Santulli, LLC," which "owned" the premises in question. The information further alleges, in effect, that, on that date, the town inspector observed that the attic had been [*2]converted to an apartment, and that the Town of Brookhaven Building Department had no permit on file for the conversion.

We need not decide whether defendant, as opposed to M. Santulli, LLC, could properly be charged under section 16-3. The information is jurisdictionally defective because its factual allegations, even if given a "reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 [2004]), do not "establish, if true" (CPL 100.40 [1] [c]), the element of the offense of "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, in effect, that the attic had been converted to an apartment, and does not allege that the conversion took place while M. Santulli, LLC 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]). Furthermore, liability under 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 conversion, and thus do not "establish, if true" (CPL 100.40 [1] [c]), that the conversion took place after the effective date.

At the plea proceeding, the information was purportedly orally amended to charge a violation of Brookhaven Town Code § 85-17. This section provides, in relevant part:
"A. No building or structure shall be erected or altered until a building permit or universal design permit therefor has been issued by the Chief Building Inspector."
Even if it is assumed that the information was, in fact, effectively amended (but see CPL 140.45 [3]), the factual allegations of the information are deficient with respect to the elements of "erect[ing] or alter[ing]" in the amended offense in the same manner in which they are deficient with respect to those elements in the original offense.

As for the information charging a violation of Brookhaven Town Code § 16-4, this section provided, in relevant part:
"A. No building or part of a building shall be occupied until a certificate of occupancy has been issued by the Chief Building Inspector or other authorized agent"
(a subsequent amendment substituted "occupied, used or changed in its use" for "occupied," and made certain other changes not relevant here).

This information, too, alleges that, on the date in question, defendant was "the owner, principal agent for and controlled M. Santulli, LLC," which "owned" the premises in question. The information further alleges, in relevant part: [*3]
"[Y]our deponent observed from the exterior, double hung windows open with screens in the attic of the subject premises with venation [sic] blinds and curtains. The third floor attic was being utilized as an apartment. Finished walls were visible on the interior. Your deponent searched the records maintained by the Town of Brookhaven Building Department and found no certificate of occupancy on file for the conversion at the subject premises."

Again, we need not reach the question whether defendant could properly be charged under this section, because the information is jurisdictionally defective. The gravamen of the charged offense is apparently that the third-floor attic was no longer in its pre-conversion state, but, rather, was being illegally occupied or used as a post-conversion apartment. The information is jurisdictionally defective because it fails to "alleg[e] facts of an evidentiary character" (CPL 100.15 [3] [emphasis added]) that "establish, if true" (CPL 100.40 [1] [c]), the element of the offense that the attic was an apartment (see People v Jones, 9 NY3d 259, 262 [2007]; People v Alejandro, 70 NY2d 133, 134-135 [1987]; People v Dumas, 68 NY2d 729 [1986]; cf. People v Kalin, 12 NY3d 225 [2009]). The statement that the attic "was being utilized as an apartment" is conclusory, rather than evidentiary (see People v Curiale, 20 Misc 3d 133[A], 2008 NY Slip Op 51465[U] [App Tem, 9th & 10th Jud Dists 2008]).

The information does offer certain evidentiary allegations. It asserts that there were "double hung windows open with screens in the attic of the subject premises with venation [sic] blinds and curtains" and that "[f]inished walls were visible on the interior." These allegations do not, however, provide an evidentiary basis from which it may reasonably be inferred that the attic was being used as an apartment rather than, for example, as a bedroom or a finished storage space. Indeed, these more detailed allegations highlight the overly conclusory nature of the allegation that "[t]he . . . attic was being utilized as an apartment" — this last allegation seems to be the result of the
complainant inspector's leaping to a conclusion on the basis of insufficient observations.

At the plea proceeding, this accusatory instrument was purportedly orally amended to charge a violation of Brookhaven Town Code § 85-20. This section provided, in relevant part, at the time of the alleged offense:
"A. No land shall be occupied or used and no building or structure hereafter erected or altered shall be used or changed in use until a certificate of occupancy shall have been issued by the Chief Building Inspector, stating that the building or structure or proposed use thereof complies with the provisions of this chapter."
Again, the gravamen of the charged offense is apparently that the third-floor attic was being illegally used as an apartment, but "evidentiary" (CPL 100.15 [3]) factual allegations to this [*4]effect are lacking.

Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed. In light of our disposition, we pass on no other issues.

Tanenbaum, J.P., and Iannacci, J., concur.

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