People v. 610 Video Store, Inc.
| Decision Date | 15 March 1999 |
| Citation | 180 Misc.2d 458,689 N.Y.S.2d 609 |
| Parties | , 1999 N.Y. Slip Op. 99,195 The PEOPLE of the State of New York, Plaintiff, v. 610 VIDEO STORE, INC., Defendant. New York County |
| Court | New York City Court |
Jeffrey A. Rabin, Brooklyn, for defendant.
Michael D. Hess, Corporation Counsel of New York City (Dennis A. Walter of counsel), for plaintiff.
This Criminal Court action was commenced against 610 Video Store, Inc., in Part SAP2, upon a Summons charging defendant with operating an illegal adult establishment in violation of the New York City Administrative Code Section 26-126. Thereafter, on November 5, 1998, the People filed an Information alleging that defendant violated "Section 26-126(a) of the New York City Administrative Code, predicated upon the defendant's violation of Sections 12-10 and 42-01(b) of the New York City Zoning Resolution in that the defendant operated an adult book store at the subject premises that is located within 500 feet of the Word Center Church."
(People's Information p 2.) On December 7, 1998, defendant moved to dismiss the Information on the following grounds: (1) the Information is facially insufficient pursuant to Criminal Procedure Law (C.P.L.) 100.40(1)(c); (2) the Amended Zoning Resolution ("Resolution"), Section 42.01(b) is unconstitutionally vague; and (3) the violation is an effort to enforce an ex post facto law. On January 12, 1999, the People filed an affirmation opposing defendant's motion to dismiss. The affirmation was accompanied by a Superseding Information which supplants the superseded instrument by operation of law. C.P.L. § 100.50(1); 1 For the reasons set forth below, the court grants the motion to dismiss on the ground of facial insufficiency and denies the remaining motions to dismiss as moot. The accusatory instrument is facially insufficient in that it fails to allege that the Word Center Church was established on or prior to April 10, 1995, which is a critical element of the violation. The dismissal is without prejudice for the People to file a new Information consistent with C.P.L. §§ 30.30 and 170.30. E.g., People v. Nuccio, 78 N.Y.2d 102, 104-105, 571 N.Y.S.2d 693, 575 N.E.2d 111 (1991)
On October 25, 1995, the New York City Council approved and incorporated Text Amendment N 950384 ZRY into the New York City Zoning Resolution. See generally, Stringfellow's of N.Y. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). Under the new amendment, adult establishments, previously grouped with other commercial ventures, are now subject to distinguishing prohibitions. These new restrictions for adult establishments were implemented after lengthy studies showed adverse effects of such uses in communities.
One such limitation prohibits both old and new adult establishments from operating their businesses in certain commercial and manufacturing districts. Adult establishments must also be located at least 500 feet from schools, houses of worship, day care centers, and other adult establishments. The Resolution contains an exception to the prohibitions: an adult establishment that otherwise complies with the Resolution will not be deemed in violation if a church (or school) locates within 500 feet of the establishment on or after April 10, 1995.
Since the enactment of the Amended Zoning Resolution, litigation (commonly referred to as the "Sex Shop" cases) in the New York City courts have proliferated. Despite this proliferation, the case before the court is the first to invoke criminal, rather than civil, sanctions.
The accusatory instrument states that on August 10, 1998, at approximately 6:30 p.m., Damon Boccadoro, an Inspection Officer for the New York City Department of Buildings (DOB), City of New York, entered premises at 610 Eighth Avenue, New York County, and observed that it was (People's Information p 3.) A supporting affidavit by Although the Information and supporting affidavit properly alleges that defendant's adult establishment is within 500 feet of a church, its critical flaw is that it fails to mention when the Word Center Church was established. It is for this reason, as discussed below, that the court grants the defendant's motion to dismiss.
Robert Iulo, Staff Analyst with the DOB, alleges that "based on [his] review of the Sanborn Map and the Zoning Map, the subject premises is located within an M1-6 Zoning District and is within 500 feet of the Word Center Church." (See Aff. p 3.) Based on the Superceding Information and supporting affidavit, the People charged defendant with violating Admin.Code 26-126(a) and Sections 12-10 and 42-01(b) of the Resolution.
I. Facial Sufficiency
Defendant moves to dismiss the Information as facially insufficient because it fails to assert an essential element of offense: defendant operated an adult establishment within 500 feet of a church that has existed at the subject location on or before April 10, 1995.
Section 42-01(b) of the Resolution, "Special Provisions for Adult Establishments", requires that:
[a]dult establishments shall be located at least 500 feet from a church ... [h]owever, on or after October 25, 1995, an adult establishment that otherwise complies with the provisions of this paragraph shall not be rendered non-conforming if a church ... is established on or after April 10, 1995 within 500 feet of such an adult establishment.
Defendant contends that (See Affirmation of Jeffrey Rabin at p. 11.) Defendant is correct.
It is undisputed that 610 Video Store, Inc. is an adult establishment as defined in the Resolution (Sec.12-10). Therefore, the issue before the court is whether the Superseding Information and supporting affidavit articulate the remaining elements to comply with C.P.L. § 100.40. 2 This court finds that the Information with the supporting affidavit omits one essential element.
Although the accusatory instrument here appears in the form of an appearance ticket, it also conforms to the formal requirements of an Information. Barring any insufficiency in content, it is a proper vehicle to charge the offense. C.P.L. § 100.05(1).
An Information is sufficient on its face if it contains non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe defendant committed every element of the offense charged. C.P.L. §§ 100.15(3), 100.40(1)(a) and (c); People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979). Allegations provide reasonable cause
when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight or persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed C.P.L. § 70.10(2). The facts therefore may establish a prima facie case, for purposes of pleading an offense, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986). This court finds that the Superseding Information and supporting affidavit do not assert all of the requisite elements to allege a violation of the Resolution.
and that such person committed it.
Section 42-01(b) of the Resolution provides both the requisite compliance and a narrow exception to the rule. The first sentence of subsection (b) lays out the requisite compliance: "[a]dult establishments shall be located at least 500 feet from a church...." The second sentence provides the narrow exception: "[h]owever ... an adult establishment that otherwise complies with the provisions of this paragraph shall not be rendered non-conforming if ... a school is established on or after April 10, 1995 within 500 feet of such adult establishment. " Thus, sentence one provides the rule (or the violation); sentence two provides a narrow exception to the violation. See Stringfellow's, 91 N.Y.2d at 393, 671 N.Y.S.2d 406, 694 N.E.2d 407. ("[a]nother narrow exception is made for otherwise conforming adult uses that fall out of compliance because of the subsequent siting of a school or a house of worship within 500 feet of their boundaries (Amended Zoning Resolution § 32-01[b]; § 42-01[b])") (emphasis added).
It is not uncommon in statutory construction to provide exceptions, conditions, modifications, alternatives, and affirmative defenses to the rule (or violation). The Penal Law (P.L.) provides some constructive examples: P.L. § 260.21(1) states the violation for unlawfully dealing with a child in a public establishment; subsection (d) states the defense that the establishment is closed to the public during the time the child is present. The first two sentences of P.L. § 225.00(3) state the definition of "Player" with respect to gambling offenses while the third sentence states the exceptions to the definition. Subsections (1), (2), and (3) of P.L. § 240.26 detail the offense of harassment in the second degree followed by the paragraph carving out the exceptions. P.L. § 275.10(2) provides that a person is guilty of manufacture of unauthorized recordings in the first degree, but only to those "sound recordings initially fixed prior to February fifteenth, [1972];" See also P.L. § 150.10(1) which states the offense of arson in the third degree...
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...the exception generally is a matter for the defendant to raise in defense "30 NY2d at 187. See People v. 610 Video Store, Inc., 180 Misc 2d 458, 689 NYS2d 609 (Crim. Ct. NY Co. 1999) (exceptions to certain restrictions on adult establishments, contained within the statute defining the restr......
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