People v Rittershaus

[*1] People v Rittershaus 2017 NY Slip Op 50979(U) Decided on May 17, 2017 District Court Of Suffolk County, Third District Matthews, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2017
District Court of Suffolk County, Third District

People of the State of New York,

against

Eliza Rittershaus, Defendant.



HUTO 0628-16
James F. Matthews, J.

Upon the following papers numbered 1 to 16 read on this motion for omnibus relief by defendantby Notice of Motion/Order to Show Cause and supporting papers 1-3, 9; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 10,11,14; Replying Affidavits and supporting papers 15,16 ; Filed papers ; Other exhibits: 4-8,12,13;(and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the pre-trial motion by defendant for omnibus relief, is decided as follows:

The defendant is charged with No Certificate of Occupancy or Certificate of Existing Use, pursuant to §87-25(A) of the Code of the Town of Huntington, a Violation, for residential property owned by the defendant at 196 Mill Dam Court, Centerport, Town of Huntington, County of Suffolk, State of New York 11721 ("Premises"), on February 26, 2016.

I. DISMISS DUE TO INSUFFICIENCY OF INFORMATION:

Defendant seeks to dismiss the pending accusatory instrument charging a violation of §87-25(A) of the Huntington Town Code, as being facially insufficient within the meaning of CPL §100.40, §100.15, §170.30, and §170.35, on the grounds the charges are insufficient as a matter of law.

Pursuant to CPL §100.40(1)(a), every accusatory information must conform to the requirements of CPL §100.15. To be sufficient, an information must contain factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed the offense charged (see CPL §100.15[3] and CPL §100.40[1][b]; People v Jones, 9 NY3d 259 [2007]; People v Casey, 95 NY2d 354 [2000]). The factual portion of the information must be supported by non-hearsay allegations which, if true, establish every element of the offense charged (see CPL §100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.30 and CPL §170.35; People v Kalin, 12 NY3d 225 [2009]; People v Alejandro, 70 NY2d 133 [1987]). In effect, an information must demonstrate [*2]the existence of a prima facie case against the defendant (see People v Clinkscales, 3 Misc 3d 333 [NY Dist Ct 2004]).

In reviewing the sufficiency of an information, the Court should view the allegations in the accusatory instrument and any supporting depositions in a light most favorable to the People (see People v Martz, 28 Misc 3d 1215(A) [NY Dist Ct 2010]), but should not give an overly restrictive or technical reading to the instrument (see People v Baumann & Sons Buses, Inc., 6 NY3d 404 [2006]).

However, not every deficiency based upon an irregularity in the accusatory instrument implicates the jurisdiction of the court (see People v Konieczny, 2 NY3d 569, 575 [2004]). "So long as the factual allegations of an information give 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 or technical reading" (see People v Casey, supra, at 360; see also People v Dreyden, 15 NY3d 100 [2010]).

Nonetheless, Casey "did not dilute the statutory requirement that the allegations of the factual part of the information, and/or any supporting depositions, establish, if true, every element of the offenses charged and the defendant's commission thereof" (see People v Cobb, 2 Misc 3d 237, 240 [NY Crim Ct 2003], citing People v Singh, 1 Misc 3d 73 [App. Term, 2nd Dept 2003]; see also People v Moore, 5 NY3d 725 [2005]; People v Inserra, 4 NY3d 30 [2004]; CPL §100.40[1]).

Here, the Court finds that since the duties of the Ordinance Inspector, Pat Muller, as complainant, require the searching of Town or other public records, "it is clear from the factual allegations of the information that the town [inspector] had personal knowledge of the contents of the records she had searched..." (see People v M. Santulli, LLC., 29 Misc 3d 54, 57 [App. Term, 9th & 10th Jud. Dists. 2010]), which fairly imply personal knowledge as to the element of ownership by defendant of the subject premises contained in the information (see People v White, 31 Misc 3d 130[A][App. Term 9th & 10th Jud. Dists. 2011]; People v Fischer, 6 Misc 3d 135[A][App. Term, 9th & 10th Jud. Dists. 2005]; People v Caravousanos, 2 Misc 3d 7, 8 [App. Term, 9th & 10th Jud. Dists. 2003]). Rather, "the source or validity of [her] knowledge is a matter to be raised as an evidentiary defense at trial and need not be raised in the information" (see People v White, supra at *2, quoting People v Casey, supra; People v Schmidt, 7 Misc 3d 128[A][App. Term, 9th & 10th Jud. Dists. 2005]; People v Hall, 4 Misc 3d 60, 63 [App. Term, 9th & 10th Jud. Dists. 2004]; People v Caravousanos, supra, at page 11); People v Sikorski, 195 Misc 2d 534, 536 [App. Term 2nd Dept 2002]).

Moreover, the Court determines that the pending charge contains factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed the offense charged (see People v Casey, supra); People v Pond Assoc. Corp., 20 Misc 3d 142[A][App Term, 2nd Dept 2008]; CPL §100.15[3] and CPL §100.40[1][b]), and demonstrates the existence of a prima facie case against the defendant (see People v Clinkscales, supra). The Court further finds that viewing the allegations in the accusatory instrument in a light most favorable to the People (see People v Martz, supra), but not giving an overly restrictive or technical reading to the instrument (see People v Baumann & Sons Buses, Inc., supra), provides sufficient factual information in the accusatory instrument, supported by non-hearsay allegations, which, if true, establish every element of the offense charged (see CPL §100.40[1][c]). The factual allegations are sufficiently detailed so that defendant may prepare a defense, and to establish what defendant is being charged with, so that defendant is protected against future prosecution for the same [*3]offense (see People v Dreyden, supra; People v M. Santulli, LLC., supra at 57; People v Fischer, supra).

Therefore, the Court determines that the accusatory information is not jurisdictionally defective within the meaning of CPL §100.40(1), §100.15, §170.30(1), and §170.35, on the ground the charge is insufficient as a matter of law. Accordingly, the motion to dismiss on the foregoing grounds, is denied.

II. DISMISSAL DUE TO VAGUENESS OF ACCUSATORY INSTRUMENT:

The defendant claims the pending accusatory instrument should be dismissed due to vagueness of the charging statute. The Courts have developed a two-part test to address a "vagueness challenge." The first requires the Court to determine whether the statute is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by statute. (see People v Spencer D, 96 AD3d 768, 769 [2nd Dept 2012); see also People v Stuart, 100 NY2d 412, 428 [2003]). The second requires the Court to determine "whether enactment provides officials with clear standards for enforcement" (see People v Spencer D, supra at 769). The underlying basis for the test is to ensure that the "...party challenging the statute [receives adequate] notice and the agency enforcing the statute with clear criteria for enforcement ..." (see People v Stuart, supra at 420). Indeed, "[T]he Court will not strain to imagine marginal situations in which the application of the statute is not so clear" (Id. at 422). "The legislative use of inherently imprecise language, however, does not render a statute fatally vague if that language 'conveys' sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices'" (see United States v Petrillo, 332 US 1, 8 [1947]; City of Albany v Lee, 53 NY2d 633, 635 [1981]; People v Illardo, 48 NY2d 403, 414 [1979]). Moreover, the challenged language "cannot be viewed in isolation, for it is but one element of a statute that gives greater definition to the proscribed conduct" (see Screws v United States, 325 US 91, 101 [1945]; see also People v Shack, 86 NY2d 529, 538, 539 [1995]).

Here, the Court determines that defendant has failed to meet the threshold standards of the 2 prong test for the pending charge. The Court notes that the charging statute is objective, and not subjective in nature. Under the pending charge before the Court, either defendant had a proper Certificate of Occupancy or a Certificate of Existing Use, for that part of the premises observed by the Town Inspector, or not. The statute is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by statute (see People v Spencer D, supra at 769). Therefore, the Court finds that the language of the accusatory information is not deemed to be vague. Accordingly, defendant's motion to dismiss the pending accusatory instrument on the ground of vagueness, is denied.

III. DISCOVERY/RECIPROCAL DISCOVERY:

The defendant's motion seeks compliance with discovery demands made pursuant to a prior production demand. The People assert all material in their possession that falls within the scope of CPL §240.20 has already been provided to the defendant.

Generally, where a discovery demand is made outside the scope of CPL §240.20, there is no constitutional right to discovery in a criminal matter (see In the Matter of Miller v Schwartz, 72 NY2d 869, 870 [1988]). Discovery is a matter of statute and where no statutory right of discovery is provided, no substantive right exists (see In the Matter of Brown v Grosso, 285 AD2d 642 [2nd Dept 2001]; In the Matter of Catterson v Rohl, 202 AD2d 420 [2nd Dept 1994]). Discovery items which are not enumerated in CPL §240.20 are not discoverable as a matter of [*4]right unless constitutionally or otherwise mandated (see In the Matter of Pittari v Pirro, 258 AD2d 202 [2nd Dept 1999]; In the Matter of Brown v Appelman, 241 AD2d 279 [2nd Dept 1998]; People v Blankymsee, 196 Misc 2d 240 [S. Ct. Queens Cty 2003]).

However, the Court may order discovery with respect to any other property "which the People intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of the defense, and that the request is reasonable" (see CPL §240.40 [1][c]).

Here, the Court determines that the People have complied with the defendant's proper discovery demands. The People assert all material in their possession that falls within the scope of CPL §240.20 has already been provided to defendant.

The Court further determines that the defendant has failed to demonstrate to the Court that certain additional and specific items demanded outside of CPL Article 240 are material and necessary to the defense, and that such requests are reasonable (see CPL §240.40 [1][c]). Accordingly, defendant's motion for compliance with further discovery demands of the People or for additional discovery, is denied.

Furthermore, the Court notes the People's demand for reciprocal discovery from the defendant (see CPL §240.30). To the extent that defendant has not complied with this demand from the People, the defendant is directed to comply within 30 days from the date of this order.

Moreover, any additional material coming into possession of either party pursuant to proper demand shall be turned over to the other, upon receipt, or as soon as possible (see CPL 240.60), to avoid unnecessary or sanctionable, motion practice.

IV. DEMAND FOR A BILL OF PARTICULARS:

That portion of defendant's motion seeking a bill of particulars is denied. A criminal bill of particulars is not a discovery device, but serves to clarify a pleading (see People v Zurita, 64 AD3d 800, 801 [2nd Dept 2009], lv to appeal denied, 13 NY3d 840 [2009]; see also, People v Davis, 41 NY2d 678, 679 [1977]; People v Earel, 22 AD2d 899 [3rd Dept 1995], affd. 89 NY2d 960 [1997]). A bill of particulars is not limited to felonies (see CPL §100.45[4] and CPL §200.95; People v Cohen, 131 Misc 2d 898 [City Ct 1981]). Where the accusatory instrument is a long form information, the rules governing a bill of particulars apply regardless of whether the defendant is charged with a misdemeanor or violation (see CPL §100.45[4]; People v Turck, 178 Misc 2d 892, 893 [J.Ct. 1998]).

Here, the People have addressed defendant's contentions by prior service of a response to defendant's demands, which provided a copy of the accusatory instrument and other items related to the charges (see People v McGettrick, 139 Misc 2d 403 [NY City Ct 1988]). Any further information requested is not within the scope of a bill of particulars (see CPL §200.95[1]). Accordingly, defendant's motion for a bill of particulars, is denied.

V. SUPPRESSION OF EVIDENCE OBTAINED BY BUILDING INSPECTOR (MAPP/DUNAWAY HEARING):

The defendant's request to suppress at trial, any seized physical evidence, or evidence such as observations or photos taken by Town Inspector Pat Muller, or any testimony concerning physical observations made by her or any other employee of the Town of Huntington, or other public official, made from entry upon the premises located at 196 Mill Dam Court, Centerport, Town of Huntington, County of Suffolk, State of New York 11721 ("Premises"), on February 26, 2016, or set the matter down for a hearing, is denied.

The defendant and her attorney allege that a warrantless search was made of the premises [*5]on February 26, 2016 by Town Inspector Pat Muller, without exigent circumstances being claimed. They further allege that the oral and written consent provided by defendant before entry by the Town Inspector was coerced by the intimidating circumstances of the situation, and was not voluntary as a result.

Consequently, defendant asserts that any evidence obtained by Town Inspector Pat Muller under these circumstances, was obtained in violation of the 4th and 14th amendments of the U.S. Constitution, and must be suppressed, or the matter must be set down for a hearing for further determination by the Court.

The People oppose both requests, and deny that the 4th and 14th amendments of the U.S. Constitution were violated, asserting the evidence obtained by Town Inspector Pat Muller was through personal observations made after entry, which was done after oral and written consent was provided by the defendant, as owner of the premises.

The Court determines that defendant has not asserted proper standing to attack the warrantless search. It is well settled that a defendant seeking to suppress evidence obtained as the result of an alleged illegal search must first prove standing to challenge the search (see People v Hunter, 17 NY3d 725, 726 [2011]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; see also U.S. v Brown, 961 F2d 1039, 1041 [2d Cir 1992]; CPL §710.60, et.seq.). It is "defendant's burden to establish, in the first instance, standing to challenge the search..." (see People v Shire, 77 AD3d 1358, 1359 [4th Dept 2010]). The burden of showing standing by defendant is necessary because "a person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property, has not had any of his fourth amendment rights infringed" (see Rakas v Illinois, 439 US 128, 134 [1978]).

Standing is a threshold issue borne solely by a defendant who seeks to challenge a warrantless search by demonstrating a reasonable expectation of privacy in the premises searched (see People v Ponder, 54 NY2d 160, 166 [1981]; see also US v Salvucci, 448 US 83, 91-92 [1980]). "In order to have standing to contest the search of a premises, the defendant must establish that he [she] had a reasonable expectation of privacy in the area searched" (see People v Gonzalez, 45 AD3d 696 [2nd Dept 2007]; see also People v Ortiz,83 NY2d 840, 842-843 [1994]). On a motion to suppress, it is the defendant, not the People, who bear the burden of proof (see People v Perez, 149 AD2d 344 [1st Dept 1989]).

A defendant must prove both subjective and objective grounds to demonstrate a legitimate expectation of privacy (see People v Hammon, 47 AD3d 644 [2nd Dept 2008]). In the first instance, a defendant must show steps taken to preserve its standing. In the second, a Court must determine if the defendant's efforts were reasonable to preserve its claim for standing (see People v Ramirez-Portoreal, supra).

Here, the Court finds that defendant's sworn statement shows that she owned the premises which included the area searched by the Town Inspector, where defendant had a reasonable expectation of privacy. However, the Court further finds that defendant has failed to demonstrate steps taken to preserve her requisite standing (see People v Ramirez-Portoreal, supra), as defendant both orally and by written consent, waived her right to privacy for the searched area of the premises and permitted the inspection to occur (see People v Shakeem B., 55 Misc 3d 47 [App Term, 2nd Dept, 2nd, 11th & 13th Jud Dists 2017]).

Though defendant belatedly claims she was coerced into her oral and written consent to the inspection of the premises by Town Inspector Pat Muller, a close examination of defendant's [*6]sworn statement and the sworn statement of Inspector Muller, contradict and belie her coercion claims.

The Town Inspector's statement says that on February 26, 2017 she "received a call from the defendant, Eliza Rittershaus, in regards to scheduling an inspection of her property located at the above mentioned address" (emphasis added). Based upon defendant's call, Inspector Muller "met the defendant at her home." The Inspector continues that:

"She orally consented to the inspection of her apartment located on the lower level. She also signed a written consent stating the same. I inspected the lower level apartment and took photos." (see Muller's sworn statement, paragraph 4).

In further support of the foregoing factual circumstances, defendant's affidavit, in relevant part, states:

"On February 26, 2016, I signed a form presented by Huntington Town Investigator, Patricia Muller, consenting to allow her to perform an inspection of my premises." (emphasis added; see defendant's sworn statement, paragraph 8).

Defendant then contradicts her own sworn statement wherein she later states: "I did not, nor did any other authorized person, ever consent to or authorize a search of the subject property." (emphasis added; see defendant's sworn statement, paragraph 13).

The defendant's sworn statement asserts inter alia she had previously received a "Notice of Demand For Inspection" from the Town, which was dated 2/1/16.[FN1] Because of this Notice, defendant claims she later felt "very intimidated, overwhelmed, coerced, and put on-the-spot to sign the [consent] form even though I did not want to do so." Defendant indicates the Notice "demanded" an inspection of her house, and "nowhere does it indicate that the Town was seeking my consent to inspect my residence."

However, defendant's statement omits the fact that she had previously received 2 prior Notice letters signed by Inspector Muller on behalf of the Town of Huntington dated June 2, 2015 and August 21, 2015,[FN2] (the later letter was captioned "Final Notice"). Both Notices were sent to defendant's premises address and informed defendant that an apparent violation of §87-25(A) of the Town Code existed which had to be corrected and brought into compliance by June 16, 2015 and September 8, 2015, respectively, or be subject to a Court Summons. Both letters also stated that "Inspection is needed to determine compliance on this matter."

The Notice dated 2/1/16, in context of the prior Town letters of 6/2/15 and 8/21/15, present an accurate picture of the events leading up to the Town inspection of defendant's premises. The Court notes that the "Demand" of 2/1/16 informs of more circumstances than that stated in defendant's statement:

"This demand for inspection is based on probable cause to believe that a violation or violations of the Code of the Town of Huntington exist(s) at this location."

Also, the Notice informs that arrangements for the inspection must be made within 72 hours. It also states: "Failure to arrange for this inspection may result in the Town of Huntington obtaining an [*7]administrative search warrant of the premises and/or property."

Finally, in the progression of events leading to the Town's inspection of the premises, the Consent to Inspect signed by defendant is dated 2/26/16 and states: "I, Eliza Rittershaus... give consent to Inspector Muller of the Town of Huntington of Public Safety to enter the premises/property described as 196 Mill Dam Court, Centerport, without a search warrant to determine the existence of any and all violations of the Code of the Town of Huntington...I agree to allow personnel of the above department (and others assisting the above Department) to take photographs and videos of the premises and/or property knowing that they may be submitted as evidence. I understand that if I do not give consent, no one may enter the premises and/or property without a search warrant. I give consent knowingly, intelligently, and voluntarily without any threats or promises of any kind."

In summary, evidence of the full picture of circumstances demonstrates that defendant received information from the various Town Notices sent to her premises, stating that probable cause existed to show a violation of §87-25(A) of the Town Code, which had to be corrected and brought into compliance by June 16, 2015 and September 8, 2015, respectively, or be subject to a Court Summons. Defendant was also informed that an inspection was needed to determine compliance within 72 hours, and that failure to arrange for this inspection might result in the Town of Huntington having to obtain an administrative search warrant of the premises. Defendant was additionally informed that if she chose not to give her consent to inspect the premises, the Town could not enter the premises without obtaining a search warrant.

The Court finds that after being fully informed of the Town's procedure to correct the Code violation, the defendant chose to cooperate and consent to the inspection, both orally and in writing, in lieu of having the Town apply for a search warrant to inspect. Indeed, the uncontradicted evidence shows it was the defendant who called Inspector Pat Muller and set up the appointment for inspection of her premises by the Town on February 26, 2016.

The Court further finds that defendant's statement that she was coerced into giving an oral statement and sign the Consent to Inspect is conclusory and not factually supported (see People v Mendoza, 82 NY2d 415, 426 [1993]), is inaccurate, and contradicts other parts of defendant's own sworn statement.

The Court notes that defendant's attorney and defendant argue Inspector Muller had defendant sign the Consent to Inspect after the actual inspection took place and not before, suggesting defendant was coerced into doing so. The Court finds this to be irrelevant to the issue of consent, as the same evidence demonstrates that defendant provided her oral consent prior to the inspection, which was not denied by defendant.

Therefore, the Court finds that defendant has failed to sustain her burden of establishing, in the first instance, standing to challenge the search (see People v Shire, supra). Defendant has demonstrated she made no steps to preserve her standing, indeed, she waived her reasonable expectation of privacy, thereby depriving herself of standing to contest the Town's inspection (see People v Shakeem B., supra; People v Ramirez-Portoreal, supra). Accordingly, defendant's motion to suppress on this basis, is denied.

The Court further determines that defendant's motion fails to contain necessary factual allegations that rise to a level that creates "a factual dispute on a material point which must be resolved before the court can decide the legal issue" (see People v Mendoza, supra; see also People v Long, 8 NY3d 1014 [2007]; People v Bryant, 8 NY3d 530 [2007]; CPL §710.60). As a [*8]result, it is not necessary to hold a pre-trial Mapp/Dunaway hearing (see Mapp v Ohio, 367 U.S. 643 [1961]; People v Dunaway, 442 U.S. 200 [1979]), to determine if any evidence should be suppressed. Accordingly, defendant's motion to suppress is summarily denied, without a hearing (see CPL §710.60).

VI. DISMISSAL AS BEING UNCONSTITUTIONAL:

The defendant seeks dismissal of the pending accusatory instrument upon the ground that the Town's Notice of Demand for Inspection is an unconstitutional coercion on the part of the Town of Huntington, to permit the Town to enter upon the property of a Town owner without benefit of a search warrant.

The People oppose defendant's request and assert that the Notice of Demand for Inspection provides a choice for a property owner, to either consent to a Town's inspection request to determine Code compliance, or do nothing, which will then require the Town to apply for a search warrant from a Court seeking a Code compliance inspection (see §71-3 of the Town of Huntington Code).

The Court notes that both methods give the property owner a choice to voluntarily cooperate with the Town in bringing a Code violation into compliance, or to force the Town to prove its case before a Court, after application for a search warrant. The first instance may end up with voluntary compliance without any fine. The second with execution of a search warrant and ultimate compliance dictated by the results of an accusatory instrument through the Court, with possible imposition of a fine, with or without compliance conditions.

It is well settled that ordinances are given an "exceedingly strong presumption of constitutionality" (see New York Charter Schools Association, Inc. v DiNapoli, 13 NY3d 120,130 [2009]; Town of Islip v Caviglia, 73 NY2d 544,551 [1989]; Bobka v Town of Huntington, 143 AD2d 381, 383, [2nd Dept 1988]). A defendant is required to rebut this strong presumption beyond a reasonable doubt and only as a last resort should a court strike down an ordinance on the ground of being unconstitutional (see Town of North Hempstead v Exxon Corp., 53 NY2d 747, 749 [1981]; Lighthouse Shores, Inc. v Town of Islip, 41 NY2d 7, 11 [1976]).

Here, the Court determines that the defendant has failed to rebut, beyond a reasonable doubt, the strong presumption of the constitutionality of the pending charge of the Huntington Town Code, or the constitutionality of the Notice of Demand for Inspection, as a component of the procedure leading up to a Town charge. Accordingly, defendant's motion to dismiss on this basis, is denied.

VII. LACK OF NOTICE:

Defendant asserts the Town of Huntington did not provide an advanced notice for compliance, informing defendant of a violation of the Town Code, as a jurisdictional pre-condition to the filing of a charging accusatory instrument, thereby requiring dismissal of the pending charge. Defendant cites People v Caravousanos, 2 Misc 3d 7 (App Term, 2nd Dept 2003) in support.

The People oppose defendant's request, asserting the Town provided 2 Notices of Violation dated 6/2/15 and 8/21/15 at defendant's premises. Also, a Notice of Demand for Inspection was issued to defendant on 2/1/16.

The People also assert that the pending accusatory instrument does not allege a State Code Violation, and advanced notice is not required.

The Court determines that under the New York State Uniform Fire Prevention and [*9]Building Code, hereinafter the "Uniform Code" (see 19 NYCRR §1203.1; §1203.5), in conjunction with the Executive Law (see §382 [1]and [2]), every city, village, town, and county charged with administration and enforcement of the Uniform Code, is required to provide a 30 day compliance period for an order to remedy, prior to the issuance of a Town summons (see 19 NYCRR §1203.5, which was adopted by the New York Secretary of State, in a Notice of Emergency Adoption, Compliance with Orders to Remedy, on January 12, 2015).

Here, no proof links the Uniform Code with the pending Town charge. Indeed, the pending charge is under the Huntington Town Code, not the Uniform Code. Therefore, 19 NYCRR §1203.5 does not apply in this instance. Accordingly, defendant's motion to dismiss on this ground, is denied.

Moreover, the Town of Huntington is not required to give advanced notice for this violation, it "may" do so. The Court notes that the People gave advanced notices dated 6/2/15 and 8/21/15, and a Notice of Demand for Inspection dated 2//1/16, making the issue moot.

Accordingly, defendant's request for dismissal on the foregoing grounds, is denied.

VIII. SANDOVAL//MOLINEUX/VENTIMIGLIA:

The Court deems defendant's papers to be a request for a Sandoval/Molineux/Ventimiglia hearing, which is hereby granted. The hearing shall be held prior to trial to determine the admissibility of any previous convictions or bad acts of the defendant, which the People seek to use at trial for impeachment purposes (see People v Sandoval,43 NY2d 371 [1974]; CPL §240.43), or prior charged or uncharged criminal, vicious, or immoral conduct which the People seek to use on their direct case to prove common scheme or plan, intent, modus operandi, or identification (see People v Molineux, 168 NY 262 [1901]; People v Ventimiglia, 52 NY2d 350 [1981]).

The People shall notify defendant immediately prior to the hearing as to any specific instances of defendant's previous convictions or bad acts or prior uncharged, criminal, vicious or immoral conduct which the People intend to use at trial.

IX. BRADY MATERIAL:

The People are reminded of their continuing obligations under Brady (Brady v Maryland, 373 U.S. 83 [1963]), to provide to defendant any and all exculpatory material if and when such material becomes known to the People, and is in their possession.

X. ROSARIO MATERIAL:

The People are reminded that all information concerning witnesses which the People intend to call at trial shall be made available to defendant pursuant to CPL §240.44 and CPL §240.45 (see People v Rosario, 9 NY2d 286 [1961]).

XI. FURTHER MOTIONS:

The defendant's request for the right to submit additional motions, if warranted, is denied to the extent that any additional motions brought before this Court shall be considered under the provisions of CPL §255.20 at the time of submission. It is not necessary for the Court to rule upon any remaining contentions. The foregoing constitutes the decision and order of this Court.

Dated: May 17, 2017

Hon. James F. Matthews

J.D.C. Footnotes

Footnote 1: A copy of the actual Notice dated 2/1/16 was attached as an exhibit to the submitted motion papers.

Footnote 2: A copy of both letters from the Town of Huntington were attached as exhibits to the submitted motion papers.