The defendant Garrett Dowd ("defendant")^[FN1], who appeared pro se, was charged with violating Peekskill City Code, Chapter 474 ("Snow and Ice Removal") ("City Code §474-1"). The People were represented by Ingrid O'Sullivan.

For the reasons that follow, the defendant is found not guilty of violating City Code §474-1 and the Information charging the defendant with violating City Code §474-1 is dismissed.

Hearing

A hearing in this matter was held on April 11, 2014. At that hearing the People offered the testimony of James Howard, Peekskill Code Enforcement Officer ("Officer Howard"). Officer Howard testified that he is a Certified Code Enforcement Officer and Fire Inspector. Officer Howard testified that he has been a Code Enforcement Officer for 14 years and a Fire Inspector for 8 of the 14 years. As a Code Enforcement Officer, Officer Howard testified that part of his duty is to inspect conditions that might be hazardous to people.

Officer Howard stated that on February 10, 2014 he was on duty and assigned to the vicinity of Nelson Ave in the City of Peekskill. Officer Howard stated that the intersection of Paulding Street and Nelson Ave is an area where [*2]there is heavy pedestrian traffic. While in the vicinity of Paulding Street and Nelson Ave, he observed the public sidewalk abutting 212 Nelson Ave to be snow covered and unshoveled. Officer Howard testified that he observed the unshoveled sidewalk more than 4 hours after the last snow fall. Officer Howard took color photos of the condition of the public sidewalk (People's "1" in evid.) and then returned to City Hall where he drafted an appearance ticket (People's "3" in evid.)^[FN2] charging defendant, the owner of the premises located at 212 Nelson Ave,^[FN3] with a violation of City Code §474-1 for failing to remove snow from the public sidewalk abutting the premises.

City Code §474-1 ("Responsibility for removal; time limit") states

It shall be the duty of every lessee, occupant of the first or ground floor or person having charge or, if there be no lessee, occupant or person having charge, then the owner of each and every parcel of real estate in the City of Peekskill abutting or bordering upon any street, avenue, highway or other public place to remove or cause to be removed all snow and ice from the sidewalk in front of or adjacent to such premises to the full paved width of such sidewalk within four hours after such snow or ice shall have fallen or accumulated thereon, the time between 9:00 p.m. and 7:00 a.m. not being included in the above period of four hours, provided that where footways or sidewalks have not been paved or duly established, snow and ice shall be removed to a width of not less than four feet from that portion of the street or way which is used in common as a footway in such street or way.

Defendant argued that the action should be dismissed because the snow removal page of the DPW Calendar (Defendant's "A" in evid.) failed to mention that the public has up to four (4) hours after the last snow fall to remove snow and/or ice from public sidewalks abutting their property or face a fine. Further, defendant argued that he is not aware of the provisions of the City Code regarding snow and ice removal and therefore he should not be liable for failing to remove snow in accordance with the Code.

Discussion & Conclusion

It is a fundamental and non-waivable jurisdictional prerequisite that an Information allege the crime the defendant is charged with, allege the facts constituting the charged crime, allege every element of the crime charged, and [*3]allege the defendant's commission thereof. See, People v. Hall, 48 NY2d 927, 401 N.E.2d 179, 425 N.Y.S.2d 56 (1979); People v. Phillipe, 142 Misc 2d 574, 538 N.Y.S.2d 400 (Crim. Ct. Kings Co. 1989); People v. Henry, 167 Misc 2d 1027, 641 N.Y.S.2d 1003 (Dist. Ct. Nassau Co. 1996). See also, CPL §§ 100.15, 100.40. Although an Information need not contain the most precise words or phrases to state the charged crime, it must allege the specific charged crime and set forth specific facts supporting the charged crime so that a defendant can prepare for trial and not face the possibility of being tried twice for the same offense. People v. Hall, 4 Misc 3d 60, 781 N.Y.S.2d 395 (App. Term 9th & 10th Jud. Dists. 2004).

With regard to whether an Information is facially sufficient, the Court need only look to the factual allegations in the Information to determine whether it gives the accused sufficient notice to prepare a defense and whether said factual allegations are adequately detailed to prevent the accused from being tried twice for the same offense. If the Court is satisfied that an Information meets both conditions, it should give the Information a fair but not overly restrictive or technical reading. See, People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.626 (2004) (citing People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]).

In the case at bar, the Information was clearly facially defective in that the factual part of the Information failed to allege each and every element of the offense charged. People v Hall, 48 NY2d 927, supra. City Code §474-1 sets forth the following four (4) statutory elements that the defendant must satisfy in order to be liable under the statute: 1.) the defendant must be a "lessee, occupant of the first or ground floor or person having charge or, if there be no lessee, occupant or person having charge, then the owner [of the premises] 2.) the premises must abut or border "upon any street, avenue, highway or other public place"; 3.) defendant must fail to remove snow or ice "from the sidewalk in front of or adjacent to such premises to the full paved width of such sidewalk; and 4.) the failure to remove the snow or ice must occur later than 4 hours after the cessation of the last snow fall, excluding the hours between 9:00 p.m. and 7:00 a.m.

A review of the factual part of the Information shows that the People failed to allege that the failure to remove snow and/or ice from the sidewalk in front of 212 Nelson Ave occurred more than 4 hours after the cessation of the last snow fall. The Information only states that "the undersigned observed Failure to remove ice and snow from the sidewalk." This allegation standing alone is insufficient as a matter of law and renders the Information facially defective because it fails to allege each and every element of the offense charged and the defendant's commission thereof. This defect is a non-waivable jurisdictional defect. See, [*4]People v. Alejandro, 70 NY2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1987) (Court held that defendant can raise omission of factual allegation in Information as a jurisdictional defect after completion of trial); People v. Volkes, 1 Misc 3d 829, 771 N.Y.S.2d 797 (Crim. Ct. Richmond Co. 2003); People v. Jones, 9 NY3d 259, 878 N.E.2d 1016, 848 N.Y.S.2d 600 (2007); People v. Jackson, 18 NY3d 738, 944 N.Y.S.2d 715, 967 N.E.2d 1160 (2012); cf People v. Casey, 95 NY2d 354, supra, (Court held that hearsay allegations in factual portion of Information is non-jurisdictional and waivable).

The question for the Court is whether a facially defective Information can be dismissed sua sponte or whether the defendant has to make a motion. CPL §§170.45, 210.45 hold that the People are entitled to be presented with a written motion to dismiss upon reasonable notice. See, People v. DeRosa, 84 Misc 2d 316, 375 N.Y.S.2d 777 (App. Term Sup. Ct. 9th & 10th Jud. Dists. 1975), aff'd, 42 NY2d 872, 397 N.Y.S.2d 780, 366 N.E.2d 868 [1977]); People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 (App. Term 1st Dept. 2000). Further, the People may, upon motion, be permitted to amend the Information and must be allowed to do so where the defect is one that can be cured by amendment. See, CPL §170.35(1)(a); People v. Diggs, 72 Misc 2d 898, 339 N.Y.S.2d 712 (Dist. Ct. Nassau Co. 1973) (Court held that Information may be amended with respect to date, time, and basis of knowledge to "on information and belief", rather than on police officer's personal knowledge, where such changes did not change theory of prosecution or prejudice the defendant); People v. Pacifio, 105 Misc 2d 396, 432 N.Y.S.2d 588 (Crim. Ct. Queens Co. 1980); People v Kurtz, 175 Misc 2d 980, 670 N.Y.S.2d 1008 (NY City Crim. Ct. 1998) (Court held that Information may be amended with respect to time, place and names of persons); People v. Diaz, 2014 WL 837070 (NY City Crim. Ct.) (Court permitted People to amend Information to allege additional facts regarding police officer's training).

Here, since the Information was fatally defective, it appears that this Court lacked jurisdiction to proceed to trial. See, McKinney's CPL §100.40, Supplementary Practice Commentaries, by Peter Preiser (2012) ("If the instrument insufficiently alleges the basic facts necessary to establish the elements of the offense, trial court cannot proceed to trial or accept a guilty plea, because it would lack jurisdiction to do so- a defect that is not waivable by the defendant" [citation omitted]); People v. Cobb, 2 Misc 3d 237, 768 N.Y.S.2d 295, 2003 Slip Op. 23850 (Crim. Ct. Queens Co. 2003) (Court held that jurisdictionally defective accusatory instrument deprived court of jurisdiction to commence trial of defendant upon an accusatory instrument which contains non-waivable defects). This Court holds that since the People proceeded to trial on a fatally defective Information—that is, an [*5]Information that failed to contain nonhearsay allegations establishing "if true, every element of the offense charged and the defendant's commission thereof" (CPL §100.40(1)[c] ), the Information must be dismissed notwithstanding the defendant's failure to move to dismiss said Information. To hold otherwise would place the Court in the unenviable and unnecessary position of risking reversal upon appeal involving every case where this occurs, which in turn has the effect of hanging a legal Sword of Damocles over these cases because the conclusion of the trial proceedings before the nisi prius court will never impart finality to these cases. People v. Jones, supra, (Court reversed defendant's guilty plea based on jurisdictionally defective information); People v. Alejandro, supra, (Court reversed defendant's conviction after trial based on jurisdictionally defective information); see also, CPL §1.20[16].

Based on the foregoing, it is

Ordered that the defendant is found not guilty of violating City Code §474-1; and

Ordered that the Information charging the defendant with violating City Code §474-1 is dismissed.

This constitutes the decision and order of the Court.

___________________________

Hon. Reginald J. Johnson

Peekskill City Court

DATED:Peekskill, New York

May 5, 2014

cc:Ingrid O'Sullivan, Esq.

Garrett Dowd, Esq.