People v Bellocco

[*1] People v Bellocco 2015 NY Slip Op 51911(U) Decided on November 23, 2015 Justice Court Of The 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2015
Justice Court of the Village of Westbury, Nassau County

The People of the State of New York,

against

Ralph Bellocco, Defendant.



10363-10371



FOR THE VILLAGE:ANNA K. VIKSE, ESQ.

Village Attorney and Prosecutor

235 Lincoln Place

Westbury, New York 11590

FOR THE DEFENDANT:Goldstein & Rodriguez, LLP

By: Omar Almanzar-Paramio, Esq.

One Fulton Avenue, Suite 20

Hempstead, New York 11550

(516) 483-4300
Thomas F. Liotti, J.

A decision and order by the Hon. Thomas F. Liotti, Village Justice.

Introduction

This case presents the seemingly never ending problem faced by this Village and all other municipalities wherein we strive to maintain the residential character of our community without violating the Constitutional rights of our residents. Our schools and village are engulfed by undocumented and untaxed immigrants where we are left to cope with these issues without the resources or sufficient tax bases to meet the needs of our legal residents and the underground constituency [FN1] . Everywhere there is a shortage of housing which then causes a proliferation of de facto illegal housing. The undocumented are then often exploited by absentee landlords and [*2]others whereby rents are paid in cash and pristine single family homes are then illegally converted to multiple dwellings. This then creates a hazardous condition for all residents; those who occupy these dwellings illegally and surrounding homeowners who then have their quality of life diminished and see the value of their homes going down.

These are frightening scenarios where entire communities are being changed not for the better but because our Congress and State Legislature have done literally nothing to solve these vexing problems which are exacerbated by worldwide events and millions of refugees being displaced by war, disease, death and famine. These are monumental, humanitarian, worldwide issues that are far beyond this Court's ability to solve or even address. But the realities are that these issues ultimately trickle down to local municipalities. We are forced to find band-aid solutions while our politicians pontificate or wash their hands of the problems by mean spirited rhetoric which in no way addresses any real solutions but merely panders to the endemic, prevalent racism which already exists in this country.

The problems associated with illegal migration are also layered in other nuances regarding national security and terrorism. The undocumented need either a path to citizenship or other legal status which will allow them to pay taxes and for the Government to at least be aware of their existence.

In this case the defendant is charged with nine building Village Code violations including:

Summons No.10363, a plumbing code violation;

Summons #10364, a conversion from single family occupancy;

Summons #10365, no rental permit;

Summons #10366, an electrical code violation;

Summons #10367, a dangerous condition;

Summons #10368, no smoke detectors;

Summons #10369, a second plumbing violation;

Summons #10370, a conversion;

Summons #10371, improper light and ventilation.

The property is not owner occupied. The charges stem from an inspection of the subject property, 5 Lexington Avenue, Westbury on March 29, 2015. The defendant resides at 31 Bedford Avenue, Westbury, New York.

The defendant has filed a Demand for Discovery pursuant to CPL §240.20 on the same day that he has filed a motion to dismiss. The motion to dismiss is made based upon the People's "alleged failure to allege each element of the violations charged by non-hearsay evidence". The People have responded. No reply to that response was received.

The defense first alleges that the charging instruments are fatally defective pursuant to People v. Casey, 95 NY2d 354 (2000)[FN2] . The Casey case is easily distinguished from this one in that the defendant was charged with a crime, criminal contempt, for an alleged failure to comply with a temporary order of protection in a domestic violence case. The Court of Appeals in Casey [*3]held:

So long as the factual allegations of an information given an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive reading.

The Court in Casey noted that:

The procedural requirements for the factual position of a criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges' (CPL §100.15[3]; see CPL 100.40[1][a]; that the allegations of the factual point * * * together with those of any supporting depositions * * * provide reasonable cause to believe that the defendant committed the offense charged' (CPL 100.40[1][b]; and that the non-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40[1]]c]; see, CPL 100.15[3]).

The defendant here is charged with violations and not misdemeanors. Each Summons is accompanied by a supporting deposition. The Court finds that all but one of the instant charges should be sustained. The Court finds that Summons #10364 is defective on its face whereas Summons #10370 is not and both allege violations of the Village's Code for conversion of a two family dwelling into a three or more family dwelling. Summons #10364 baldly states that the building "did not have a Certificate of Occupancy". This itself is a misstatement in that the building no doubt has a Certificate of Occupancy but not one for three families.

The averments made in Summons #10364 are based on hearsay, meaning that the supporting deposition states that there were side and rear separate entrances but the inference that then follows namely that from that the Building Inspector concluded that there were separate apartments does not follow. The Building Inspector may be one hundred percent correct in his conclusion but it does not follow from the allegations as pled. Again, the allegations in Summons #10364 are dismissed not because they are duplicative but because as drafted the allegations appear to be based entirely on hearsay.

The defendant's further contention that the failure to attach certified Building Department records renders the Summons' defective is also denied. The defendant argues that certified Building Department records must be attached to the charging instruments. The defendant draws an analogy to Vehicle and Traffic Law (hereinafter VTL) §511, to wit: Operation While Licence or Privilege is suspended or revoked; Aggravated unlicensed operation. The defendant did not refer to any additional case law on this point aside from Casey, supra which is unavailing. VTL §511 can result in a misdemeanor or a felony charge. It is also a mens rea crime in that knowledge of the suspension or revocation must be proven. Knowledge may be proven if the [*4]People can show that a defendant has received actual notice of a suspension or revocation. People v. Acevedo, 27 Misc 3d 889, 897 N.Y.S.2d 899 (2010).

The instant charges are in the nature of malum prohibitum violations. Therefore it is not necessary for the People to provide certifications as an element of knowledge since intent or knowledge are not elements of these Building Code violations.

This Court finds that the other contentions of the defendant to be without merit or not matters that are properly decided in a pre-trial motion.

This constitutes the decision and order of the Court. The matter is adjourned to January 13, 2016 at which time the defendant, his counsel and the Village Attorney should appear and the matter will be set down for either a disposition or trial.

Dated:Westbury, New York

November 23, 2015

ENTERED:

____________________________________

HONORABLE THOMAS F. LIOTTI

Village Justice

Footnotes

Footnote 1:See Scott Eidler, Crumbling Schools, Costly Crisis, In Westbury, $172.6 M bond vote put off as district runs tours to persuade voters, Newsday, November 22, 2015 at A 22-23. This story reports that the Westbury Public School population has jumped from 3,772 in 2007 to 4,992 in 2015 with 77 percent of the students eligible for free lunch and 30 percent considered to have limited English proficiency. The District also has 74 homeless students and 130 unaccompanied minors. The Hispanic population of New Cassel, an unincorporated area adjacent to our Village and part of the Westbury School District is now 49 percent Hispanic.

Footnote 2:Incorrectly cited in defendant's papers as "3d". "Jump cites" are 717 N.Y.S.2d 88, 740 N.E.2d 233.