People v. Fletcher Gravel Co., Inc.
| Decision Date | 07 May 1975 |
| Citation | 82 Misc.2d 22,368 N.Y.S.2d 392 |
| Parties | The PEOPLE of the State of New York, Respondent, v. FLETCHER GRAVEL CO., INC., and/or W. F. Saunders and Sons, Inc., Defendants-Appellants. |
| Court | New York County Court |
Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, John F. Gates, Syracuse, of counsel, for respondent.
Hersha & Scott, Camillus, Francis A. Discenza, Camillus, of counsel, for defendants-appellants.
This is an appeal from the judgment of conviction and the sentence entered in the Justice Court of the Town of Camillus after a jury verdict on August 15, 1974, wherein the defendants were found to be in violation of the town's zoning ordinance (§ 26--15(i)).
Briefly stated, the facts indicate that on August 15, 1973 the town's zoning enforcement officer and building inspector filed an information with the Town of Camillus Justice Court charging the above defendants with having violated § 26--15(i) of the Town's Zoning Ordinance which had originally been adopted on Sept. 1, 1961. The People contend that as a result of the adoption of this ordinance, the area in which the defendants have been conducting their business was zoned R--2 thus essentially restricting the use of property in that area for residential purposes. In conjunction with this zoning ordinance § 26--15(i) was also passed an order to regulate uses not permitted under the new zoning restrictions, but that were allowed to continue so long as the non-conforming use was not expanded. The jury in the lower court found that defendant Fletcher Gravel Co., Inc. as the lessor and W. F. Saunders and Sons, Inc., the lessee of the instant property, in violation of § 26--15(i) in that they allegedly expanded their business and added structures, all in violation of the non-conforming use regulations. As a result of this verdict the defendants were fined $2500.00 and ordered to cease and desist from carrying on any kind of business that is in violation of the town zoning ordinance and also to obtain permits for those buildings and structures that were erected without permits.
The defendants in this appeal have presented to the Court a number of legal arguments upon which it is alleged that a reversal of the instant conviction would be warranted; the Court will consider those arguments that it considers dispositive of the issues raised on this appeal.
The defendants contend, first of all, that the lower court committed an error when it denied the defendant's motion to dismiss the instant information because it did not comply with the mandates of the Criminal Procedure Law.
The lower court held the following portion of the instant information sufficient upon due consideration of the motion to dismiss:
'It appears that there has been several additions of structures on the premises since the Zoning Ordinance was passed on May 1, 1963. All buildings, uses and structures that have been added to the nonconforming use are in violation of Sec. 26--15--I of the Camillus Zoning Code.
The definition of a structure as defined in the Zoning Code is (anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground).'
The Criminal Procedure Law provides a series of sections that clearly states what our law presently requires in order to sustain an information in the face of a motion to dismiss because of its legal insufficiency.
Section 170.30(1) of the Criminal Procedure Law states in part:
'(1) After arraignment upon an information . . . the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:
(a) It is defective, within the meaning of Section 170.35.'
Section 170.35(1) states in part that:
'An information . . . is defective within the meaning of paragraph (a) of subdivision one of Section 170.30 when:
(a) It is not sufficient on its face pursuant to the requirements of Section 100.40.'
Section 100.40(1) states that:
'An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed by Section 100.15 1 and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting deposition establish, if true, every element of the offense charged and the defendant's commission thereof.'
Thus, the Criminal Procedure Law specifically states the requirements upon which an information's sufficiency may be judged, and more specifically the legislature clearly stated in Sec. 100.40(1) that sub-division (a), (b) and (c) thereof must all be complied with in order to sustain an information. Although the Criminal Procedure Law sets out sufficiency requirements relative to informations even beyond the sufficiency requirement applicable to a felony complaint and misdemeanor complaints, the need therefore is clearly stated in the Practice Commentary found in Book 11A of West McKinney's Consolidated Laws of New York following § 100.40 of the C.P.L. wherein it is stated:
The commentator continues on to explain why in the case of an information it must demonstrate both reasonable cause and a legally sufficient case:
'This instrument (information) not only commences a non-felony action but, generally, also constitutes the instrument of ultimate prosecution in the local criminal court.' (See People v. Niosi, 73 Misc.2d 604, 342 N.Y.S.2d 864.)
Thus the importance of an information is apparent in that it serves as the instrument which initially commences the criminal action as well as the accusatory instrument upon which the charge is ultimately prosecuted. In accordance with the mandate of § 100.40 the instant information is defective in several respects. § 100.15(2) specifically states that the accusatory part must designate the offense charged. A reading of § 26.15(i) contains several unnumbered paragraphs setting out the various ways in which one could be charged with its violation. However, nowhere in the accusatory part of this information is it alleged with any particularity what offense is charged. This Court believes that § 100.15(2) requires more than merely stating the section number of the alleged statute being violated, when upon a reading of the statute, its violation can occur by various forms of conduct. At the very least the language of the statute should be utilized to designate the 'offense charged' in cases involving statutes containing language which designates several different forms of conduct constituting its violation.
Moreover and perhaps more importantly § 100.15(3) further requires in sub. (3) that the factual part of the information must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support this charge. This requirement in the Criminal Procedure Law has been taken from the reasoning enunciated in cases such as People v. Schultz, 301 N.Y. 495 wherein the court stated at p. 497, 95 N.E.2d 815 at p. 816:
People v. Zambounis, 251 N.Y. 94, 96, 97, 167 N.E. 183, 184; and see People v. Grogan, 260 N.Y. 138, 142, 183 N.E. 273, 274, 86 A.L.R. 1266.
Thus the Criminal Procedure Law requires facts of an evidentiary character. Furthermore and in conjunction with sub. 1(b) of § 100.40, the factual allegations must be of sufficient quality so as to provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and further under sub. 1(c) that these allegations of fact be non-hearsay in nature and establish if true, every element of the offense charged and the defendant's commission thereof. Thus as stated earlier the information must contain factual allegation establishing reasonable cause to believe that the defendant committed the crime and non-hearsay allegations of fact establishing a legally sufficient factual basis for supporting each of the elements of the crime charged and the defendant's commission thereof. The instant information does not allege facts of an evidentiary character supporting or tending to support the alleged violation of § 26--15(i), but merely states in a conclusory manner only that § 26--15(i) is being violated. Nor does this information contain non-hearsay factual allegations, if considered true, that establish every element of the offense charged, or reasonable cause to believe the defendant committed the alleged offense. See Sec. 70.10(2) C.P.L. It is readily apparent, therefore, how important it is for an information to designate the offense charged...
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