People v Tempesta

[*1] People v Tempesta 2008 NY Slip Op 50422(U) [18 Misc 3d 1143(A)] Decided on February 21, 2008 Justice Court Of Village Of Westbury, Nassau County Liotti, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2008
Justice Court of Village of Westbury, Nassau County

The People of the State of New York,

against

Marie Tempesta and Prudential Galeria Real Estate, Defendant.



6247 & 6248



FOR THE VILLAGE:

DWIGHT D. KRAEMER, ESQ.

Village Attorney and Prosecutor

342 Post Avenue

Westbury, New York 11590

FOR THE DEFENDANT:

MARIE TEMPESTA

PRUDENTIAL GALERIA REAL ESTATE

Defendants Pro Se

192 Hillside Avenue

Williston Park, New York 11596

Thomas F. Liotti, J.

This case was tried without a jury before this Court on January 17 , 2008. At the conclusion of the trial, the Court reserved decision. This constitutes the decision and verdict of the Court.

Mr. Harris Linares testified that he received a copy of a purported Multiple Listing Service (herein after "MLS") listing for the premises located at 23 Walnut Street, Westbury, New York 11590 from a Village Trustee. According to the charging instrument, the property allegedly has no rental permit on file with the Village of Westbury, in violation of the Code of the Village of Westbury §248-293.[FN1] [*2]

Although the statute unambiguously states the elements of this violation, there exist important procedural considerations which must be followed before the People may meet their burden of proof. The Court notes that this is in the nature of a malum prohibitum violation, so that proof of intent or knowledge is not required. Village Justice Courts are local criminal courts [FN2] and part of the Unified Court System.[FN3] Although New York has no Code of Evidence, its rules of evidence are governed by Article 45 of the Civil Practice Law and Rules. This Court has previously held that the rules and case law relative to hearsay apply with equal force in Village Court as in any other Courts, as well as in the case of alleged Building Code violations.[FN4]

Out-of-court statements which are offered for the truth of their content constitute hearsay, and may not be admitted unless they come within an exception to the hearsay rule. People v. Slaughter, 189 AD2d 157, 596 NYS2d 22 (1st Dept., 1993). CPLR 4518(a) provides an exception to the hearsay rule:

"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter."

Evidence introduced must be authenticated by witness testimony. Though it is unnecessary for the party introducing a business record to produce the file clerk who was the custodian of these records, the production of a witness with personal knowledge of the custodian's relevant practices and procedures is acceptable. Lodato v. Greyhawk North America, LLC, 39 AD3d 494, 834 NYS2d 239 (2nd Dept., 2007); see also, Vermont Com'r of Banking and Ins. v. Welbilt Corp., 133 AD2d 396, 519 NYS2d 390 (2nd Dept., 1987). A legend on the document complying with [*3]the language of CPLR 4518 will also suffice and is usually presented in lieu of actual testimony. In addition form of the evidence must consist of the actual original document(s); this doctrine is known as the Best Evidence Rule. Federal Rule of Evidence 1003, which provides a concise summary of New York law on the admission of duplicates in lieu of the original document, provides that a duplicate is inadmissible if "(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." See, Johnson v. Lutz, 253 NY 124 (1930).

In the case at bar, the evidence submitted by the Village was a purported listing from the Multiple Listing Service of Long Island, Inc. The Village produced no witnesses or other legend to authenticate the documents. The Village never requested or issued a subpoena for same, which would normally provide a substitute method of authentication of documents. The defendants did not testify at trial. In addition to the evidence itself lacking authentication, the form of the evidence runs afoul of the best evidence rule. See generally, U.S. v. Savarese, 404 F.3d 651 (2nd Cir., 2005)[digital recordings of surveilled conversations admissible in lieu of the original recordings where federal prosecutors were able to authenticate the recordings].

The lack of adherence to procedure is also evident in the Building Inspector's examination of the premises. The Inspector purports to have visited the premises and spoke with individuals, yet no names were recorded or statements taken. No photographs of the property were taken by the Inspector and no other evidence was received corroborating the direct testimony of the Building Inspector, who provided no more than, at best, circumstantial evidence. The Inspector did not even fully enter the premises to observe the alleged living quarters. Further, other evidence about conversations with alleged tenants, while not offered, would in any event also be inadmissible as hearsay.

The People have failed to meet their burden of proof beyond a reasonable doubt and the charges are therefore dismissed in toto. This is the decision, verdict, and order of the Court.

Date:Westbury, New York

February 21, 2008ENTER:

_______________________________

Hon. Thomas F. Liotti

Village Justice Footnotes

Footnote 1:The statute reads:

"A. It shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York for any person to:

(1) List, solicit, advertise or offer, exhibit or show to any person, a rental dwelling unit located within the Village of Westbury, for the purpose of bringing about the rental thereof, where no currently effective permit has been issued in respect of such rental dwelling unit by the Code Enforcement Officer of such Village, as herein provided.

(2) Accept a deposit of rent or security, or a commission, in connection with the rental of a rental dwelling unit located within the Village of Westbury where no currently effective permit has been issued in respect of such rental dwelling unit, by the Code Enforcement Officer of such Village, as herein provided.

B. In the event that a person convicted of a violation of Subsection A of this section shall have been a real estate broker or sales person licensed by the State of New York, at the time such violation was committed, it shall be the duty of the Village Clerk to transmit a record of such conviction to the Division of Licensing Services of the Department of State and to make complaint thereto against such licensee on behalf of the Village, pursuant to the provisions of the Real Property Law."

The Court notes that this phrase "Penal Law of the State of New York" is a misnomer, as the Village has no legal authority to enact "Penal Laws" for the State of New York. Its authority is limited to passing Local Laws for the Incorporated Village of Westbury.

Footnote 2:Criminal Procedure Law §10.10(3)(d) and (e).

Footnote 3:Uniform Justice Court Act §102.

Footnote 4:People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6