People v North Shore Design, Inc.

[*1] People v North Shore Design, Inc. 2015 NY Slip Op 51947(U) Decided on December 31, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1612 S CR

The People of the State of New York, Respondent,

against

North Shore Design, Inc., Appellant.

Appeal from 15 judgments of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), rendered May 1, 2014. The judgments convicted defendant, after a nonjury trial, of four charges of violating § 16-3 (A) (denominated by the District Court as counts 1, 2, 3 and 4), eight charges of violating § 16-4 (A) (denominated as counts 5, 6, 9, 10, 11, 12, 13 and 15), two charges of violating § 82-3 (F) (denominated as counts 32 and 33) and one charge of violating § 82-3 (H) (denominated as count 43) of the Brookhaven Town Code. The appeal brings up for review the denial of the branches of defendant's omnibus motion which sought the dismissal of the accusatory instruments relating to the aforementioned charges, and the suppression of evidence.

ORDERED that the judgments convicting defendant of violating Brookhaven Town Code § 16-3 (A) (charges denominated as counts 1, 2, 3 and 4), § 16-4 (A) (charges denominated as counts 5, 6, 9, 10, 11, 12, 13 and 15) and § 82-3 (F) (charges denominated as counts 32 and 33) are affirmed; and it is further,

ORDERED that the judgment convicting defendant of violating Brookhaven Town Code § 82-3 (H) (charge denominated as count 43) is reversed, on the law, the accusatory instrument charging this offense is dismissed, and the fine, surcharge and administrative fee, if paid, are remitted.

Insofar as is relevant to this appeal, defendant was charged, in regard to its ownership of the premises located on Christian Avenue, Stony Brook, Town of Brookhaven, NY, with violating Brookhaven Town Code § 16-3 (A) (Permit required) (charges 1, 2, 3 and 4),[FN1] Brookhaven Town Code § 16-4 (A) (Certificates of occupancy) (charges 5, 6, 9, 10, 11, 12, 13 and 15), Brookhaven Town Code § 82-3 (F) (Neighborhood preservation requirements [health & safety]) (charges 32 and 33), and Brookhaven Town Code § 82-3 (H) (Neighborhood preservation requirements [sanitary facilities]) (charge 43). Defendant moved for, among other things, suppression of all evidence obtained attendant to the execution of a search warrant, and [*2]for the dismissal of the accusatory instruments charging the aforementioned offenses on the ground that they were facially insufficient. By order dated January 15, 2013, the District Court denied the branch of defendant's motion seeking suppression, upon finding that defendant lacked standing to bring the motion, and, in any event, that the factual allegations in support of the motion were deficient. The branch of defendant's motion seeking the dismissal of the accusatory instruments was also denied.

At a nonjury trial, it was uncontested that defendant owned the subject premises which it leased to 17 tenants, and that the certificate of occupancy for the house indicated that it was a six-bedroom, two-story, single-family house. The Town investigator testified that, upon his execution of a search warrant, he had observed 16 bedrooms in the house, and that the rooms designated on the building plans for the house as the living room, library, den, gathering room, exercise room, play room and computer room, had been altered/changed into bedrooms, for which no certificates of occupancy had been issued. Each of these rooms had privacy doors, some of which had key locks, and the investigator described the contents of each room, which included, among other things, beds, pillows, bed linens, closets, clothes, and personal belongings. The investigator also testified that the gathering room, exercise room, computer room and the play room had been altered by the enclosure of the pass- throughs into these rooms with the installation of sheetrock, doors and door frames, but no building permits had been issued for these alterations. The door to the play room/bedroom was a hazardous condition to the health and safety of persons because the hinges and handle of the door were on the same side of the door, and the house had inadequate sanitary facilities, as he had observed a five-by-six foot pile of household garbage, broken furniture and other debris inside of the attached garage, in which he had also observed a rodent. The access to the equipment/air conditioner room was a hazardous condition to the health and safety of persons because it was blocked by cardboard and doors.

Following the trial, the District Court convicted defendant of violating Brookhaven Town Codes § 16-3 (A) (charges 1, 2, 3 and 4), § 16-4 (A) (charges 5, 6, 9, 10, 11, 12, 13 and 15), § 82-3 (F) (charges 32 and 33), and § 82-3 (H) (charge 43). The court found defendant not guilty of the remaining charges.

On appeal, defendant contends, among other things, that all of the evidence obtained attendant to the execution of a search warrant should be suppressed; that the accusatory instruments are facially insufficient because they fail to allege each and every element of the offenses charged, contain conclusory factual allegations, do not allege that defendant made, or was aware of, any alteration, do not use the same descriptive words provided in the Code, and do not provide sufficient allegations regarding defendant's actions and requisite mental culpability; that the District Court improperly convicted defendant of the charges even though no trial evidence had been presented that defendant was culpable pursuant to Penal Law §§ 15.10 and 20.00; and that the trial evidence was legally insufficient to establish defendant's guilt of the eight charges of violating Brookhaven Town Code § 16-4 (A).

It is well settled that a defendant seeking suppression of evidence obtained as the result of an alleged illegal search must establish that it has standing to challenge the search (see People v Hunter, 17 NY3d 725, 726 [2011]; People v Ramirez— Portoreal, 88 NY2d 99, 108 [1996]). This foundational requirement also applies when a defendant seeks suppression based on a challenge to the validity of a search warrant (see People v Wesley, 73 NY3d 351 [1989]; People v Tronchin, 233 AD2d 767, 768 [1996]; People v Allstate Props., LLC, 36 Misc 3d 159[A], 2012 NY Slip Op 51820[U] App Term, 2d, 11th & 13th Jud Dists 2012]). "Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy" (People v Burton, 6 NY3d 584, 587 [2006]; see also Sokolov v Village of Freeport, 52 NY2d 341 [1981]). A "legitimate expectation of privacy turns on consideration of all of the surrounding circumstances, including but not limited to defendant's possessory interest" (People v Ramirez-Portoreal, 88 NY2d at 109).

Generally, an absentee landlord lacks standing to challenge the search of a property leased [*3]to a tenant (see People v M. Santulli, LLC, 29 Misc 3d 54, 58 [App Term, 9th & 10th Jud Dists 2010]; People v Rosa, NYLJ, June 11, 1996, at 33, col 3 [App Term, 9th & 10th Jud Dists 1996]; Tarantino v City of Hornell, 615 F Supp 2d 102, 109 [WD NY 2009]), since the landlord would not have a reasonable expectation of privacy in such a property (see Arrowsmith v City of Rochester, 309 AD2d 1201 [2003]; People v M. Santulli, LLC, 29 Misc 3d at 58). With respect to the Brookhaven Town Code § 16-4 (A) charges, which were based on the investigator's observations during his search of the inside of the tenants' rooms, defendant clearly had no expectation of privacy in these rooms. With respect to the Brookhaven Town Code §§ 16-3 (A), 82-3 (F), and 82-3 (H) charges, which were based on the investigator's observations within the house, but not necessarily within any of the tenants' rooms, defendant failed to show that it retained possession over any area of the house and, thus, that it had an expectation of privacy in the areas where the investigator's observations were made (see Arrowsmith v City of Rochester, 309 AD2d 1201; People v M. Santulli, LLC, 29 Misc 3d at 58). Consequently, the District Court properly found that defendant had no standing and denied its motion to suppress the evidence attendant to the execution of the search warrant.

In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of a claim of hearsay, which, must be raised pretrial to be preserved, and here it was timely raised by motion (see People v Casey, 95 NY2d 354). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be alleged and the defendant be provided with sufficient notice so that it can prepare itself for trial, and so that it will not be tried again for the same offense (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360).

At the outset, we note that defendant's contention that the accusatory instruments are defective because they fail to provide sufficient allegations regarding the requisite mental state has no merit. The fact that Brookhaven Town Code §§ 16-3 (A), 16-4 (A), 82-3 (F) and 82-3 (H) do not refer to a culpable mental state evinces an intent to impose strict liability (see Penal Law § 15.10; People v Coe, 71 NY2d 852, 854 [1988]). Also, the aforementioned sections of the Brookhaven Town Code use mandatory language (§ 16-3 [A] ["it shall be unlawful to construct, alter . . . or continue to maintain the alteration . . . of a . . . building or any art thereof"]; § 16-4 [A] "[(no) land shall be occupied or used . . . until a certificate of occupancy has been issued"]; § 82-3 [F] "[(d)wellings, structures and accessory structures shall be maintained so as to be free of conditions detrimental to safety or health"]; and § 82-3 [H] "[(a)dequate sanitary facilities . . . shall be used for the . . . disposal of garbage"], which is another indicium of an intent to impose strict liability (see People v Nemadi, 140 Misc 2d 712, 717 [Crim Ct, NY County 1988]). Indeed, building and safety-related ordinances which impose strict liability have a long history of being upheld (see Morissette v United States, 342 US 246, 257-260 [1952]; People v Munoz, 9 NY2d 51, 58 [1961]; People v Vurckio, 162 Misc 2d 876, 880 [Crim Ct, Kings County 1994]; People v Beecher, 153 Misc 2d 247, 252 [Valley Stream Just Ct 1992]). Consequently, the accusatory instruments did not have to allege, and the People were not required to present evidence at trial, that defendant had the culpable mental state to commit the underlying acts for which it was convicted.

With respect to the accusatory instruments charging defendant with violating

Brookhaven Town Code § 16-3 (A) (Permit required)—which section provides that it is unlawful to alter, maintain or continue to maintain the alteration, removal or demolition of a wall, structure, building, or any part thereof, without first obtaining a permit—we find that, contrary to defendant's contention, the accusatory instruments do not have to contain allegations that [*4]defendant was the owner of the property when the alterations were made, and that defendant made the alterations or knew about the alterations when they were made. The version of the Brookhaven Town Code in effect when defendant was charged uses the word "maintain" and, therefore, the accusatory instrument need only allege that an illegal alteration was made and that the defendant owned the property thereafter. Moreover, the factual allegations contained in the accusatory instruments are not "conclusory" (see People v Dumas, 68 NY2d at 731; CPL 100.15 [3]); rather, they sufficiently describe the alterations defendant is alleged to have maintained without a permit. The accusatory instruments are also sufficiently "evidentiary" (CPL 100.15 [3]) so as to permit a reviewing court to determine that the deponent made sufficient observations to support the charges (see People v Kalin, 12 NY3d at 231), and the allegations are sufficiently detailed both to enable defendant to prepare a defense, and to establish what defendant was being charged with, so that defendant was protected against future prosecution for the same offense (see People v Kalin, 12 NY3d at 230). Consequently, the District Court properly denied the branch of defendant's motion seeking to dismiss the accusatory instruments charging defendant with violating Brookhaven Town Code § 16-3 (A).

With respect to the accusatory instruments charging defendant with violating Brookhaven Town Code § 16-4 (A) (Certificates of occupancy)—which provides that no portion of a structure shall be occupied, used, or changed in its use, until a certificate of occupancy has been issued by the Town of Brookhaven—we find that, contrary to defendant's contention, the instruments satisfy all statutory requirements. Consequently, the District Court properly denied the branch of defendant's motion seeking to dismiss the accusatory instruments charging defendant with violating Brookhaven Town Code § 16-4 (A).

With respect to the accusatory instruments charging defendant with violating Brookhaven Town Code § 82-3 (F) (Neighborhood preservation requirements [health and safety])— which provides that "[d]wellings, structures and accessory structures shall be maintained so as to be free of conditions detrimental to safety or health"—we find that, contrary to defendant's contention, the instruments satisfy all statutory requirements. Consequently, the District Court properly denied the branch of defendant's motion seeking to dismiss the accusatory instruments charging defendant with violating Brookhaven Town Code § 82-3 (F).

With respect to the accusatory instrument charging defendant with violating Brookhaven Town Code § 82-3 (H) (Neighborhood preservation requirements [sanitary facilities])—which provides that "[a]dequate sanitary facilities and methods shall be used for the collection, storage, handling and disposal of garbage . . . pursuant to Suffolk County Health Department standards"—we find that the instrument is facially insufficient since the factual allegations contained therein fail to establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d at 731). The instrument states, in pertinent part, that the:

"deponent observed a large pile, approximately five (5') feet in height and six (6') feet in depth, of household garbage, broken furniture and other debris was stored in the garage under the dwelling, in violation of Suffolk County Health Department standard § 760-501 Offensive Material in that No person shall permit, deposit, store, or hold any offensive material on any premises or place unless such material is so treated, screened, covered, placed or located so as not to create a public health nuisance' and All containers for the storage of offensive material shall completely confine the material, shall be rodent and insect proof, and shall be kept in an inoffensive and sanitary condition at all times.' The term offensive material' as used in this section of the Suffolk County Health Department standard § 760-501 Offensive Material shall mean any sewage, fecal matter, urine, [*5]garbage, or any putrescible organic matter. The items observed in the pile of garbage previously described did comply with the meaning of offensive material as defined by the Suffolk County Health Department. Your deponent searched the records maintained by the Town of Brookhaven Planning Department and found that the subject property is zoned as a B Residence 1 District. The violation does not fall within any exception to the Brookhaven Town Code."

The deponent's allegations regarding the "household garbage, broken furniture and other debris" he observed are not included in the definition of "offensive material" as provided in Suffolk County Sanitary Code § 760-501 (1). Therefore, the accusatory instrument does not indicate that the disposal methods described in Suffolk County Sanitary Code § 760-501 (2) apply. Consequently, the branch of defendant's motion seeking to dismiss of the accusatory instrument charging defendant with violating Brookhaven Town Code § 82-3 (H) should have been granted.

To the extent that defendant raises a contention regarding the legal sufficiency of the evidence as it pertains to the Brookhaven Town Code § 16-4 (A) charges, that contention is unpreserved for appellate review, since defendant failed to raise at trial the specific arguments it now makes on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, we find that the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish defendant's guilt beyond a reasonable doubt of violating Brookhaven Town Code § 16-4 (A).

Furthermore, upon the exercise of this court's factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdicts convicting defendant of violating Brookhaven Town Code § 16-4 (A) were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Defendant's remaining contentions lack merit.

Accordingly, the judgments convicting defendant of violating Brookhaven Town Code § 16-3 (A), § 16-4 (A) and § 82-3 (F) are affirmed, and the judgment convicting defendant of violating Brookhaven Town Code § 82-3 (H) is reversed and the accusatory instrument charging this offense is dismissed.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: December 31, 2015

Footnotes

Footnote 1: In rendering the verdicts, the District Court referred to the 44 charges contained in the 44 accusatory instruments as "counts" and numbered each accusatory instrument accordingly from 1 through 44. We will refer to them as charges 1 through 44.