| People v Schulman |
| 2014 NY Slip Op 50769(U) [43 Misc 3d 1225(A)] |
| Decided on May 8, 2014 |
| Just Ct Of Vil Of Port Washington North, Nassau County |
| Greenbaum, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
People of the
State of New York, Plaintiff,
against Barry E. Schulman, Esq., Defendant. |
On this motion and cross-motion, the Court has considered the following submissions:
Defendant was charged under an accusatory instrument which alleged that he failed to obtain a building permit "to install a Water Pool/Spa," in violation of Section 68-5 of the Code of the Village of Port Washington North (the "Code") (Schulman Affm., Exhibit G, p. 2).
Defendant previously sought dismissal of the accusatory instrument pursuant to §§100.15, 100.40[1][a], 100.40[1][b] and 100.40[1][c], on the grounds that the complaint was "facially defective" (Schulman Affm., ¶ 19). Since Defendant had failed to attach a copy of the challenged accusatory instrument to his motion papers, rendering those motion papers "facially defective", by order dated December 10, 2013, this Court denied Defendant's motion without prejudice to renewal upon a proper set of papers (Schulman Affm, ¶ 19).
For its part, without the benefit of a notice of cross motion, the People previously moved to amend the accusatory instrument, to include the Lauria Deposition (Schulman Affm., ¶ 19). However, the date of filing of that supporting deposition occurred after the date that Defendant filed his motion to dismiss (Schulman Affm., ¶¶ 5, 8), preventing Defendant from addressing whether the supporting deposition cured the alleged facial insufficiency of the accusatory instrument. Accordingly, by order dated December 10, 2013, this Court denied the People's "cross-motion" for an order amending the accusatory instrument, similarly without prejudice to renewal by formal notice of motion with the direction that the People should also seek an amendment of the caption to include Defendant's full name (Nelson Aff., ¶ 9).
By formal notice of motion, dated December 16, 2013, the People have renewed its motion to amend the accusatory instrument pursuant to CPL §§100.40 and 170.35(1)(a) (Nelson Aff., ¶ 2). Defendant has renewed his motion, now couched as a cross-motion, for dismissal on the grounds that: (i) the accusatory instrument is facially insufficient and defective, pursuant to CPL §§100.15, 100.40[1][a], 100.40[1][b] and 100.40[1][c] and (ii) the proceeding should be dismissed in the interest of justice, pursuant to CPL §170.30 and 170.40 (Schulman Affm., ¶ 2).
Section 100.45(3) of the Criminal Procedure Law authorizes this Court to allow the amendment of an information:
The People have moved to amend the accusatory instrument by supplementing it with the Lauria Deposition. Defendant urges that the motion to amend should be denied because the amendment is unavailing and prejudicial.
As will be discussed below, the proposed amendment is not unavailing. Moreover, although the procedural history of this case is not free of past pleading irregularities, the fact that Defendant has had to undergo protracted proceedings does not constitute the type of prejudice contemplated by the statute. Indeed, the trial in this matter still has not yet even been scheduled.
Accordingly, the People's motion to amend the complaint is granted.
The People also move to amend the caption of this proceeding to reflect Defendant's full name. Defendant's motion papers are bereft of any opposition to such relief. Consequently, the caption of this case hereafter shall be:
Defendant cross-moves to dismiss the accusatory instrument on the grounds of facial insufficiency and in the interests of justice (Schulman Affm., ¶ 2).
Section 100.40(1) prescribes the criteria for determining whether an accusatory instrument is facially sufficient:
"1. An information, or a count thereof, is facially sufficient on its face when:
Conversely, Section 170.35(1) prescribes the criteria for determining whether an accusatory instrument is facially insufficient:
"1. An information, a simplified information, a prosecutor's information or a misdemeanor complaint or a count thereof is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when:
Defendant argues that the accusatory instrument, as now supplemented by the Lauria Deposition, is insufficient because: (i) it lacks facts of an evidentiary character supporting or tending to support the charges; (ii) it fails to provide reasonable cause to believe that Defendant committed the offense charged; and (iii) it lacks non-hearsay factual allegations establishing, if true, every element of the offense charged (Schulman Affm., ¶¶ 21-28, especially ¶ 25).
Defendant claims that the accusatory instrument, as now supplemented by the Lauria Deposition, does not define what constitutes an "improvement" under the Code and why the subject water pool/spa (i.e., allegedly an 8' x 8' hot tub [Schulman Affm., ¶ 21]) is considered an "improvement" that requires a building permit (Schulman Affm., ¶¶ 21-24).
However, as noted above, Section 100.40(1) of the Criminal Procedure Law does not require an accusatory instrument to define what constitutes an "improvement" under the Code. An accusatory instrument is facially sufficient when allegations of the factual part of the information, together with supporting depositions which accompany it, provide reasonable cause to believe that the Defendant committed the offense charged in the accusatory part of the information and non-hearsay allegations of the factual part of the information and/or supporting depositions establish, if true, every element of the offense charged and Defendant's commission thereof.
Here, the accusatory instrument, as now supplemented by the Lauria Deposition, clearly specifies that the Deputy Building Inspector Fred Lauria reviewed the applications, building plans and specifications for the subject premises located at 1 Cove Lane (Nelson Reply Aff., ¶ 17). The building plans include the original construction plans for those premises and any applications for improvements and pool permits concerning the premises (Nelson Aff., ¶ 17).
Accordingly, having conducted a review of the "applications, building plans and
specifications" for the premises, Mr. Lauria had a factual basis to determine that: (i) the
initial building plans for the premises did not include a water pool/spa; and (ii) no
application for a building permit to erect a water pool/spa was on file. The records of the
Village of Port Washington North, so reviewed by Mr. Lauria, are official business
records and, accordingly, are of a non-hearsay nature. Consequently, the accusatory
instrument, as now supplemented by the Lauria Deposition, contains allegations of a
non-hearsay nature to support the claim that the water pool/spa existed on
Accordingly, the accusatory instrument, on its face, clearly identifies the "object on the premises" for which an application to acquire a building permit was not filed and provides a non-hearsay basis for that assertion.
The issue of whether the water pool/spa is in fact an "improvement" is a factual issue to be resolved at trial by this Court after testimony, not a legal question that impacts upon the facial sufficiency of the accusatory instrument.
However, the Court notes that Section 68-5 of the Code provides that:
Similarly, Section 176-1 of the Code defines a "structure" as:
Consequently, that branch of Defendant's cross-motion to dismiss the accusatory instrument, as now supplemented by the Lauria Deposition, for facial insufficiency is denied.
Defendant also urges that this proceeding should be dismissed in the interests of justice, pursuant to Sections 170.30 and 170.40 of the Criminal Procedure Law (Schulman Affm., ¶¶ 2, 30-37). While this Court has the authority to dismiss an accusatory instrument if, in its judicial discretion, there exists some compelling consideration clearly demonstrating that conviction or prosecution of the Defendant upon that accusatory instrument would result in injustice, the Court is also required to consider, among other factors enumerated in CPL §170.40, the seriousness and circumstances of the offense, the extent of harm caused by that offense, and the impact of a dismissal on the safety or welfare of the community.
The discretionary authority to dismiss a proceeding in furtherance of justice "should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution...would be an injustice" (People v. Graham, 39 Misc 3d 35, 37, 965 N.Y.S. 2d 271, 272 (Sup. Ct. App. T. 2nd Dept. 2013); People v. Candelaria, 50 AD3d 913, 855 N.Y.S. 2d 259 (2nd Dept. 2008)). Vague or conclusory reasons unsupported by a record which gives enough substance to clearly demonstrate the actual existence of at least some compelling factor, consideration or circumstance will not suffice (People v. Harmon, 181 AD2d 34, 36, 586 N.Y.S. 2d 922, 924 (1st Dept. 1992); People v. Richman, ____ N.Y.S. 2d ____, 2014 WL 1717003, 2014 NY Slip Op. 24118, 5/8/2014 N.Y.L.J. p. 32, col. 3-4 (Sup. Ct. App. T. 2nd Dept. 4/18/2014)).
The factual record in this matter has not yet been fully developed and, without further testimony concerning issues such as the possible impact upon the community, the existence of a heat producing appliance attached to the water pool/spa which may be not in compliance with the Code or other regulations, the issue of the adequacy of fencing, etc., this Court cannot, at this juncture, dismiss this proceeding in the interest of justice.
The Court also notes that contrary to Defendant's implicit arguments (Schulman Affm., ¶ 27), the theory of estoppel cannot generally be invoked against a municipality (see Parkview Associates v. City of New York, 71 NY2d 274, 282, 525 N.Y.S. 2d 176, 178, 519 N.E. 2d 1372, 1374 (1988); Scruggs-Leftwich v. Rivercross Tenant's Corp., 70 NY2d 849, 852, 523 N.Y.S. 2d 451, 453, 517 N.E. 2d 1337, 1339 (1987); Oakwood Property Management, LLC v. Town of Brunswick, 103 AD3d 1067, 1068-1069, 960 N.Y.S. 2d 535, 538 (3rd Dept. 2013); Lily Pond Enterprises, Inc. v. City of New York, 149 AD2d 412, 413, 539 N.Y.S. 2d 505, 506-507 (2nd Dept. 1989)
Accordingly, that branch of Defendant's cross-motion seeking dismissal of the accusatory instrument in the interests of justice is denied at this time, without prejudice to renewal at trial.