People v Thorner (Marie)

[*1] People v Thorner (Marie) 2010 NY Slip Op 51673(U) [29 Misc 3d 126(A)] Decided on September 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2009-1542 S CR.

The People of the State of New York, Appellant,

against

Marie Thorner, Respondent.

Appeal from an order of the Justice Court of the Town of Riverhead, Suffolk County (Richard A. Ehlers, J.), dated April 9, 2009. The order, insofar as appealed from, granted the branch of defendant's motion seeking to dismiss the accusatory instrument as facially insufficient.

ORDERED that the order, insofar as appealed from, is affirmed.

Defendant was charged in an information with violating Riverhead Town Code § 68-24 (E) (1), in that she failed to furnish hot water to the sinks and bathing fixtures in a premises she owned. By order dated April 9, 2009, insofar as appealed from, the Justice Court granted the branch of defendant's motion seeking to dismiss the
information for facial insufficiency on the basis that it failed to contain allegations establishing that the premises was a "multiple dwelling."

Riverhead Town Code § 68-24 (E) (1) provides that:
"Buildings and portions thereof shall be provided with plumbing systems designed to dispose of the sewage from all fixtures and to furnish cold water to every water closet and urinal and hot and cold water to every sink, lavatory, bathtub and shower required therein. In multiple dwellings, hot water shall be furnished at a temperature range of one hundred thirty degrees to one hundred forty degrees (130 to 140 F.) from 6:00 a.m. to 12:00 midnight." [*2]
A plain reading of this provision shows that its first sentence applies to all "[b]uildings and portions thereof," while its second sentence applies exclusively to "multiple dwellings." In the instant case, the People have sought to unlawfully expand the scope of Riverhead Town Code § 68-24 (E) (1) to impose a requirement that hot water be furnished in all buildings, including non-multiple dwellings, even though by the terms of the provision, that requirement is expressly limited to "multiple dwellings." Here, the information neither alleged that the subject premises lacked plumbing systems "designed to" furnish hot water nor asserted that the premises was a "multiple dwelling." Thus, the Justice Court properly found that the information failed to contain allegations sufficient to establish, if true, every element of the offense as defined in Riverhead Town Code § 68-24 (E) (1) and granted defendant's motion to dismiss the information as facially insufficient (see CPL 100.40 [1] [c]; 100.15 [3]; People v Lonberg, 22 Misc 3d 138[A], 2009 NY Slip Op 50346[U] [App Term, 9th & 10th Jud Dists 2009]).

Moreover, we note that adopting the construction of Riverhead Town Code §
68-24 (E) (1) advocated by the People would likely result in the arbitrary enforcement of that provision, as standards for "hot water" are not defined for non-multiple dwellings. In light of this ambiguity, an ordinary person would not know what conduct was prohibited for non-multiple dwellings.

Accordingly, the order, insofar as appealed from, is affirmed. Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: September 24, 2010