Statement of the Facts

Hon. Thomas J. DiSalvo, J. The defendant was charged with a violation of the Webster

Town Code Section 225-9(A), which sets out what is permitted in a R-1 Residential District. It

is alleged that the defendant is operating a non-permitted business in said residential district.

The Town Code is specific as to what type of activity is allowed in an R-1 District. The

ordinance in question states as follows:

"The following shall apply in the R-1 District:

A. Permitted uses shall be as follows:

(1) Single-family detached dwellings.

(2) Religious uses.

(3) Fire stations.

(4) Public parks not conducted for profit and public playgrounds not conducted for profit, including field houses.

(5) Public and parochial schools.

(6) Agricultural uses. [*2]

(7) Accessory uses.

(8) Communications towers upon the issuance of a special use permit by the Town Board.

[Added 12-21-1996 by L.L. No. 8-1996]

(9) Bed-and-breakfasts upon the issuance of a special use permit by the Planning Board.

[Added 8-2-2001 by L.L. No. 5-2001]"

On June 10, 2010 the defendant was issued an appearance ticket issued by Gary Kleist, Commissioner of Public Works alleging a violation of the above section of the Webster Town Code on February 13, 2010. Accompanying said appearance ticket was an information, as defined by C.P.L. 100.10(1), sworn to by George Winter, the Code Enforcement Officer. In accordance with C.P.L. 100.15(1) the information must contain an accusatory part and a factual part. The defendant made a motion to dismiss the charges pursuant to C.P.L. 170.30(1)(a) and 170.35(1)(a). The People have submitted a written response in opposition thereto.

Legal Analysis.

C.P.L 100.15(2) requires that the accusatory portion of an information "... must designate the offense or offenses charged". The information herein conforms to that requirement by alleging that the defendant is the owner of 663 Lake Road in the Town of Webster, and that the defendant operated a " Party House', Hotel' and LPGA Sports Rental'" at said location and that said uses "Are not permitted uses in the R-1 Single-Family Residential District."

C.P.L. 100.15(3) requires that the "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." Said subsection further indicates that "The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief". However, this section also requires "... that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions. See also, C.P.L. 100.40(1)( c), which states that an information is sufficient when "Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

Before the court can get to the merits of the charges against the defendant, it must ascertain the sufficiency of the accusatory instrument. The allegations set out in the factual part of the complaint are set out below and are reviewed as follows:

(1) "On or about the 13th, day of February, 2010, your deponent did personally view the property with a large amount of cars and party in progress." The town code does not prohibit any property in an R-1 district from having a party with a large amount of cars.

(2) "The activity has been observed by neighbors and police were called to that location." [*3]This is a hearsay statement since the court has no idea what was seen by neighbors. Also, the fact that police were called to a particular location does not indicate that a violation of any law has taken place at that location.

(3) "Town of Webster Commissioner of Public Works, Gary Kleist notified the property owner of the violation." This is a classic hearsay statement, since one has no idea what Gary Kleist did or did not say. In a addition, the statement is not evidentiary, but instead sets out a conclusion that a violation took place.

(4) "Your deponent further observed Internet Ads' for this Webster House property referring to this property as a Hotel, for a day, a Few Days, a Week, or a Month, depending on your needs'" It is not a violation of the Webster Town Code to have an ad advertising a use not permitted by the zoning code. It would only be illegal to actually conduct an activity not permitted in a particular district by the zoning code.

(5) "Notice was served on the defendant on the19th of February, 2010, which explained the violation and indicated that if the situation was not corrected, that a court proceeding charging the violation could be initiated." A notice not part of the sworn complaint could not rehabilitate an insufficient complaint. This particular allegation is also classic hearsay, i.e. an out of court statement made to prove the truth of the matter asserted. Nor is the existence of such a notice evidence of an offense.

(6) "The event rentals have continued per the attached internet review dated the 11th of June, 2010." One has no idea as to what rentals were taking place or the date and time they were alleged to have taken place. Again, it is not a violation of the town code to advertise an non-permitted use, it is only a violation to engage in a non-permitted use of property.

Conclusion.

The factual portion of the information fails to set out non-hearsay allegations that would establish, if true, every element of the offense charged and the defendant's commission thereof. C.P.L 100.40(1)( c). Nor did the people set out statements in the factual portion of the information alleging facts of an evidentiary character supporting or tending to support the charges. C.P.L. 100.15(3). Therefore, the defendant's motion to dismiss the charge of operating a business in an R-1 Residential District is hereby granted. Since the court has not made a determination as to underlying merits of the People's case, but has only ruled on the instant accusatory instrument, this dismissal is without prejudice as to the refiling of similar charges against the defendant, should the People wish to do so. This constitutes the decision and order of this Court.

Dated: October 12, 2010Webster, New York

______________________________________Hon. Thomas J. DiSalvoWebster Town Justice