People v Rafalowitz

[*1] People v Rafalowitz 2014 NY Slip Op 50903(U) Decided on June 9, 2014 District Court, Nassau County, First District Ciaffa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2014
District Court, Nassau County, First District

The People of the State of New York, Plaintiff(s),

against

Nesslene Rafalowitz, Defendant(s).



2013NA001156S



Joseph J. Ra, Town Attorney, Attorney for Plaintiff, One Washington Street, Hempstead Town Hall, New York,11550, 516-489-5000; Community Legal Assistance Corp., Hofstra University School of Law, 108 Hofstra University, Hempstead, New York, 11549, 516-463-5934
Michael A. Ciaffa, J.

On July 31, 2013, a Town of Hempstead Code Enforcement Officer issued an appearance ticket directing defendant, Nesslene Rafalowitz, to appear in District Court "in connection with your alleged commission of the following offense" — "Placard Dwelling Unfit for Human Occupancy." The appearance ticket further alleged that defendant committed that offense on July 25, 2013, in violation of Article 1, Section 107.4 of the Property Maintenance Code of the State of New York (PMCNYS).

According to the Code Enforcement Officer's affidavit of service, the appearance ticket was affixed to the door of defendant's "dwelling house (place of abode)" in Baldwin, New York, on July 31, 2013, after three previous attempts at personal service. Another copy was mailed to defendant on August 20, 2013, by first class mail. Two days later, on August 22, 2013, the Town filed and affixed an accusatory instrument bearing the caption "People of the State of New York against Nesslene Rafalowitz." It included extremely sparse sworn factual allegations from the Code Enforcement Officer, as follows:

COUNT I

[Defendant] [v]iolated the Property Maintenance Code of New York

State of New York [sic], Article 1 Section 107.4, by unlawfully residing

in placard dwelling unfit for human occupancy.

To wit: At the aforementioned time and place, your deponent observed

unfit posters removed from dwelling, dwelling is unfit for human occupancy.

The accusatory instrument further alleged that defendant "is the owner of the above mentioned premises" and that "the Property Maintenance Code...was duly and legally adopted, enacted, published, ... posted ... and filed ... prior to July 25, 2013 and said ordinances are still applicable." No other factual allegations are set forth within the four corners of the accusatory instrument.

Defendant's Motion

In accordance with a motion schedule fixed by the Court (see CPL §255.20[1]), defendant timely moves for an order dismissing the accusatory instrument as "facially insufficient" (CPL §170.35[1][a]) and/or dismissing it "in the interest of justice" (CPL §170.40). In pertinent part, defendant's counsel contends, first, that the accusatory instrument fails to sufficiently allege three "necessary elements" for charging a violation of Article 1 Section 107.4 of the PMCNYS — "Occupancy, Placarded Premises and Unfitness for Human Occupancy."

Second, defendant's motion contends that the PMCNYS is part of a larger State Uniform Fire Prevention and Building Code, and that any criminal code violations must satisfy Executive Law §382(2) by alleging that the defendant has been served with an order to remedy the violation but failed to comply with the order within the time period stated in the order.

Finally, defendant's attorneys move to dismiss the accusatory instrument in the interest of justice. According to the last branch of defendant's motion to dismiss, defendant is a 69 year old wheelchair-bound widow. Due to multiple serious health problems, i.e. a degenerative disc disorder and cancer, defendant is unable to work and survives on a fixed disability income, most of which is used to pay medical bills. She cannot afford to pay mortgage arrears totaling more than $300,000, she owes thousands more on her water bill, and was barely able to scrape together a few thousand dollars recently to remove rubbish on the premises.

Based upon these facts, counsel argues that "Ms. Rafalowitz is both physically and financially unable to rectify any condition which the Town may have alleged to exist in the property." Consequently, "it would be unjust to prosecute someone for what is ultimately the product of their own destitution and poor health." When considered together with other facts and circumstances, counsel maintains that the Court should "do the right thing" and dismiss the charge against her.

Each argument has merit.

Discussion

Our state's laws apply equally to the rich and the poor. But as French author and social critic Anatole France bitingly observed in The Red Lily, the law "in its majestic equality forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." Anatole France, Le Lys Rouge [The Red Lily](1894), ch. 7 ("La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de [*2]mendier dans les rues et de voler du pain"). The facts at bar starkly involve a modern variation of that theme.

The principal issue presented in this criminal proceeding is whether the Town of Hempstead, representing "The People of the State of New York," may criminally prosecute a disabled 69 year old widow for allegedly occupying "placarded premises."

By law, Town officials may condemn property that is "unsafe" or is "unfit for human occupancy." See PMCNYS Section 107.1. As defined in the Code, "[a] structure is unfit for human occupancy whenever such structure is unsafe, unlawful or, because of the degree to which the structure is in disrepair or lacks maintenance, is insanitary, vermin or rat infested, contains filth and contamination, or lacks ventilation, illumination, sanitary or heating facilities or other essential equipment ..." Section 107.1.3. When the Town acts pursuant to these provisions and exercises its power to condemn property as "unfit for human occupancy," it must post a "placard" notice "in a conspicuous place in or about the structure affected by such notice." Section 107.3. Once it does so, the next section of the PMCNYS provides "[n]o person shall occupy a placarded premises..." Section 107.4.

Importantly, all provisions in the PMCNYS, by definition, are deemed "part of the State Uniform Fire Prevention and Building Code (the Uniform Code) promulgated pursuant to Article 18 of the Executive Law." PMCNYS Section 102.2. Article 18 of the Executive Law governs the rights and obligations of local governments under the State Uniform Fire Prevention and Building Code. It includes a critically important section of the law, entitled "Remedies." See Executive Law §382.

The law's intent is plainly protective and legitimate. See generally Executive Law §371; PMCNYS Section 101.3. Without question, governmental entities act within their police powers in enacting laws protecting residents from unsafe or unfit housing. "Egregious" abuses by slumlords and other property owners are rightly subject to potential criminal penalties, and when warranted by law, courts may be asked to criminally punish wrongdoers at the same time it orders the abatement of dangerous conditions and nuisances. See generally New York State Department of State, James A. Coon Local Government Technical Series, "Administration and Enforcement of the Uniform Fire Prevention and Building Code and the State Energy Conservation Construction Code" (rev. December 2013), at p. 22 (recognizing that local governments may decide to utilize criminal sanctions for "the most egregious code violations").

But the facts at hand are a far cry from those presenting a truly viable criminal case against the defendant. In so concluding, the Court acknowledges that the accusatory instrument against defendant must be given a "reasonable, not overly technical reading." See People v Konieczny, 2 NY3d 569, 576 (2004). Nevertheless, the accusatory instrument is defective on its face — no matter how broadly read, it lacks "non-hearsay [*3]evidentiary allegations" that defendant violated section 107.4 "by unlawfully residing in placard dwelling unfit for human occupancy." See CPL §§100.40(1)(c).

Reading section 107.4 together with the definition set forth in section 107.1.3, a facially sufficient instrument must include facts, not conclusions, establishing the Town's basis for claiming that the subject premises were, indeed, "unfit for human occupancy" as that term is defined in section 107.1.3. The accusatory part of the Code Enforcement Officer's statement fails to do so. Likewise, the Code Enforcement Officer's statement contains no facts alleging actual unlawful occupancy after placarding. For this reason alone, the criminal charge against defendant must be dismissed. CPL 170.35(1)(a).

More fundamentally, the charge brought against the defendant in this case appears to represent a heavy-handed and misguided attempt to enforce a civil building code regulation by treating defendant as a criminal. Upon close examination, the law does not support such criminalization. Although the law allows the Town to condemn "unfit" premises, and to seek appropriate Supreme Court remedial orders which may include injunctive and coercive relief, see Executive Law §382(3), it does not permit the Town to prosecute and criminally punish the defendant in District Court simply for allegedly "occupying" placarded premises. To the contrary, mere occupancy of "placarded" premises is, at most, a civil violation — not a crime. Nothing in the PMCNYS, itself, provides a basis for criminalizing such mere occupancy. Rather, the only way an alleged violation of the PMCNYS can result in criminal charges is if the Town carefully follows the notice and cure procedures of Executive Law §382(2).In narrowly defined circumstances, the Town has the power to "order in writing the remedying any condition" which violates the PMCNYS, and to issue appearance tickets for violations. See Executive Law §382(1); Town of Hempstead Code, §§ 2-1 and 52-3. However, the Executive Law goes on to provide that the owner or occupant can be fined or imprisoned only if the Town first personally serves an order to remedy the condition upon the owner or occupant, and that person fails to comply with the order within the time specified. See Executive Law 382(2). No such allegations are made by the Town, either in the accusatory instrument or in its opposing papers. This, too, is a fatal jurisdictional defect. See, e.g. People v Caravousanos, 2 Misc 3d 7 (App Term 2d Dept 2003); People v Plateau Associates LLC, 38 Misc 3d 770 (Justice Ct Ossining, 2012); People v Grimditch, 35 Misc 3d 268(County Ct Essex Co., 2012). In the absence of a timely request by the Town to amend the accusatory instrument, this is not a case where any such deficiency can be cured at this late date. See CPL 170.35(1)(a).

ConclusionFor these reasons, the charge against the defendant in this case is hereby DISMISSED. Although defendant's attorneys have also made out a persuasive case for dismissal in the interest of justice, the Court need not reach that issue at this time. The Town may, of course, pursue appropriate civil remedies to address any perceived unfit conditions on the property. And counsel for both parties are urged to explore other means through which [*4]defendant may obtain governmental assistance in order to maintain the premises in a habitable condition. All requests for further or different relief are denied as moot.So Ordered:

District Court Judge

Dated: June 9, 2014

cc:Community Legal Assistance Corp.

Hon. Joseph J. Ra, Town Attorney