It is, ORDERED that defendant's application for an order dismissing the five accusatory instruments herein, on the grounds that same are facially insufficient (CPL 170.30 (c) is granted, as to counts 2 and 5. The convenience store ancillary property uses described in these counts are presently authorized under the Huntington Town Code (hereafter "TOH") (See TOH Sec. 198-32 (A)(2). The fact that the prior law and zoning board decision prohibited such a use are irrelevant and can not be utilized as the predicate to establish a prima facie case under TOH Secs. 198-122(A) and 87-25 (A).

The defendant's application is denied as to the accusatory instruments identified as count's 1, 3 and 4 as they are facially sufficient. Counts 3 and 4 allege that the defendant failed to obtain a certificate of permitted use for the business of trailer sales/storage as is required in TOH Sec. 87-25(A). To be facially sufficient under New York CPL Sec's. 100 (40) (1) and 100.15 an information need only state factual, non hearsay allegations that the defendant committed the offense charged in sufficient detail to give the defendant adequate notice so that the defendant can prepare for trial and identify the offense with enough specificity that he can not be tried again. People v. Reyes, 24 Misc 3d 51 (9th & 10th App. Term 2nd Dept. 2009) citing to People v. [*2]Casey, 95 NY2d 354 (NY 2001). Accusatory instruments which contain personal knowledge attestations of facts as to the operation of a business without a certificate of permitted use have been upheld as legally sufficient. See

Page 2

Index Number HUTO 97-10

generally, People v. Canco, 12 Misc 3d 134 (A) (9th & 10th App. Term 2nd Dept. 2006), interpreting TOH Sec. 87-25 (A) as to a landscaping business.

As to counts 3 and 4 the Court notes that there appears to be no dispute that the defendant has obtained certificates of occupancy for all structures on the premises and does not have any certificate of permitted use for the premises. After dismissal of counts 2 and 5 the remaining factual contest is limited to whether the Town Code requires a certificate of permitted use in this instance. Sec. 87-26 "Change of Use" was enacted in 2005. Prior to its enactment, the concept of formal "certificate of permitted use" did not exist. It is noted that the plain language of Sec. 87-26 requires a permitted use certificate only when the use existing in 2005 is "changed". No certificate is required for unchanged land uses. Clearly, the dispositive trial issue for these counts is the pre 2005 existence of the trailer sales/storage business. If the land use was present and existing pre 2005, even if illegal, no requirement exists to seek out an 87-26 permit. The defendant's argument that it sought and was denied a permitted use certificate is unavailing. The proper remedy to a capricious denial of such a certificate is an Article 78 proceeding to compel issuance, not to disregard the law. See generally, Higgins v. Village of Orchard Park, 277 AD2d 989 (NY AD 4th Dept. 2000).

The count 1 Sec. 198.10 (A) illegal use "outside trailer storage" sufficiency challenge is more problematic. Both parties acknowledge that the sale and storage of trailers is a permitted use subject to issuance of a conditional use permit pursuant to the provisions of Sec. 198.27 (c) (2). However, the Court need not consider this statute as it appears undisputed that a TOH "special use" Sec. 198.27 (c) (2) application was never sought or obtained by the defendant.^[FN1]

The defendant asserts that a Sec. 198-10 (a) improper use charge is unsustainable as it obtained a ZBA grant to operate an "Auto Display Room' and "Service Station" in October of 1945. (ZBA No.718). It is argued that outside trailer storage is either within the scope of the ZBA grant or is an "accessory use" as defined by TOH Sec. 198-2. The record does not contain either the transcript of the ZBA hearing or its written decision. The TOH code does not define "auto display room" (emphasis added) and the parties have not opined on whether such a use would allow for storage outside the display room. As such this appears to be a fact dependant issue which can only be resolved at trial. For legal sufficiency purposes, the accusatory [*3]instrument is proper as the defendant is on notice as to the People's posture that the outside storage of trailers is not permitted in a C-6 zone as to its property. The defendant can adequately understand and defend this charge and is protected from any future double jeopardy situation.

The Court did not reach or determine any of defendant's additional arguments addressing the contents of the factual allegations contained in the informations. That branch of defendant's motion was deemed one for relief pursuant to CPL §170.30 (f). The Court has made no determination regarding facts supporting such legal arguments.

Dated:

J.D.C.