People v. Bank of Am., N.A.

• Decision Date: 18 March 2021
• Docket Number: 2020-613 N CR
• Parties: The PEOPLE of the State of New York, Respondent, v. BANK OF AMERICA, N.A., also Known as Bank of America, National Association, Successor by Merger to Merrill Lynch Credit Corp., Appellant.
• Court: New York Supreme Court — Appellate Term

71 Misc.3d 15

145 N.Y.S.3d 278

The PEOPLE of the State of New York, Respondent, v. BANK OF AMERICA, N.A., also Known as Bank of America, National Association, Successor by Merger to Merrill Lynch Credit Corp., Appellant.

2020-613 N CR

Supreme Court, Appellate Term, New York, Second Dept., 9 & 10 Jud. Dist.

Decided on March 18, 2021

David A. Gallo and Associates, LLP ( Robert Link of counsel), for appellant.

Shan Ward Coschignano, PLLC, ( Michael H. Sahn, Jon A. Ward, Joshua D. Brookstein, Joseph R. Bjarnson and Ralph Branciforte of counsel), for respondent.

PRESENT: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.

ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed and the fines, if paid, are remitted.

Following a nonjury trial, defendant was convicted of two charges of creating a hazardous or offensive condition on December 22 and December 29, 2018, respectively, in violation of Old Westbury Village Code § 147-1 (H), two charges of unlawfully using property on December 22 and December 29, 2018, respectively, in a B-4 residence district for the non-permitted commercial use of renting it out as a venue for a party open to the public in violation of Old Westbury Village Code § 216-22.3, and two charges of unlawfully using property on February 12, 2019 and June 16, 2019, respectively, in a B-4 residence district for the non-permitted use of a commercial rental in violation of Old Westbury Village Code § 216-22.3.

On appeal, defendant contends, among other things, that the accusatory instruments are facially insufficient. In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged ( see CPL 100.15 [3] ; 100.40 [1] [c]; People v. Jones , 9 N.Y.3d 259, 261-263, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007] ; People v. Casey , 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; People v. Alejandro , 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). The failure to meet the above requirements is jurisdictional and can be asserted at any time ( see People v. Casey , 95 N.Y.2d at 363, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; People v. Alejandro , 70 N.Y.2d at 135, 517 N.Y.S.2d 927, 511 N.E.2d 71 ), with the exception of hearsay which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court ( see People v. Kalin , 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; People v. Casey , 95 N.Y.2d at 364-365, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). The law does not require that an information contain the most precise words or phrases which most clearly express the thought; rather, " ‘[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading’ " ( People v. Konieczny , 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004], quoting People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; see also People v. Sedlock , 8 N.Y.3d 535, 538, 838 N.Y.S.2d 14, 869 N.E.2d 14 [2007] ). An "information that is facially insufficient is jurisdictionally defective and must be dismissed" ( People v. Sumter , 151 A.D.3d 556, 557, 58 N.Y.S.3d 304 [2017] ; see also People v. Jones , 9 N.Y.3d at 263, 848 N.Y.S.2d 600, 878 N.E.2d 1016 ).

The Old Westbury Village Code § 147-1 (H) charges:

Chapter 147 of the Old Westbury Village Code, entitled "Peace and Good Order," provides that "Any person who, with intent to provoke the public peace and good order of the Village or whereby a breach of the peace and good order may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: ... H. Creates a hazardous or offensive condition by any act which serves no legitimate purpose." The two accusatory instruments charging defendant with violating Old Westbury Village Code § 147-1 (H) provide that defendant did so "by unlawfully creating a hazardous or offensive condition by any act which serves no legitimate purpose." It does not state that defendant, "with intent to provoke the public peace and good order of the Village or whereby a breach of the peace and good order may be occasioned," created a hazardous or offensive condition. By omitting the foregoing relevant language, which includes the required mens rea, the instruments did not allege every element of the offense and failed to give defendant sufficient notice so that it could prepare a defense and prevent it from being tried twice for the same offense ( see e.g. People v. Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Consequently, so much of the accusatory instruments charging defendant with violating Old Westbury Village Code § 147-1 (H) on December 22 and December 29, 2018 are jurisdictionally defective and must be dismissed ( see People v. Sanson , 59 Misc. 3d 4, 8, 71 N.Y.S.3d 797 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018] ).

The Old Westbury Village Code § 216-22.3 charges:

Section 216-22.3, "Permitted uses," of Article IVA, "B-4 Residence Districts," of Chapter 216, "Zoning," states that "No building shall be erected, altered or used and no lot or premises may be used except for one or more of the purposes set forth in § 216-12 of Article IV of this chapter." Section 216-12, "Permitted uses," of Article IV, "BB Residence Districts," states that "No building shall be erected, altered or used and no lot or premises may be used, except for the following purposes: A.

Detached single-family dwelling. B. The office of a physician, dentist, lawyer, teacher, architect or other professional person residing in the main dwelling ..."

With respect to the December 22 and December 29, 2018 Old Westbury Village Code § 216-22.3 charges, the two accusatory instruments state that the property was being "rented and used as a venue for a party open to the public," and that such use "is prohibited." These factual allegations, which are of an evidentiary character, establish, if true, every element of the offenses charged ( see CPL 100.15 [3] ; 100.40 [1] [c]; People v. Jones , 9 N.Y.3d at 261-263, 848 N.Y.S.2d 600, 878 N.E.2d 1016 ; People v. Casey , 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; People v. Alejandro , 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 ).

With respect to the February 12, 2019 and June 16, 2019 Old Westbury Village Code § 216-22.3 charges, the factual allegations of the two accusatory instruments allege that the property was being rented and occupied by David Levine on February 12, 2019 and by Nnamdi Ukasoanya on June 16, 2019 and that "a rental property for profit [is] a prohibited commercial use." However, neither Old Westbury Village Code § 216-22.3 nor § 216-12 prohibit the rental of property in a B-4 residential district so long as the ultimate use of the property is as a single family residence. As here, the accusatory instruments do not set forth any ultimate use of the property in violation of the permitted uses, and, thus, they do not provide defendant with sufficient notice so that it could prepare a defense and prevent it from being tried twice for the same offense ( see e.g People v. Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Consequently, the portions of the accusatory instruments charging defendant with violating Old Westbury Village Code § 216-22.3 on February 12, 2019 and June 16, 2019 are jurisdictionally defective and must be dismissed ( see People v. Jones , 9 N.Y.3d at 263, 848...