People v. Giusti

• Citation: 176 Misc.2d 377,673 N.Y.S.2d 824
• Parties: , 1998 N.Y. Slip Op. 98,211 The PEOPLE of the State of New York, Plaintiff, v. Paolo GIUSTI, Defendant.
• Decision Date: 25 February 1998
• Court: New York City Court

Page 824

673 N.Y.S.2d 824

176 Misc.2d 377, 1998 N.Y. Slip Op. 98,211

The PEOPLE of the State of New York, Plaintiff, v. Paolo GIUSTI, Defendant.

Criminal Court of the City of New York,

New York County.

Feb. 25, 1998.

Fuhrer & Melamed, L.L.P., New York City (Neil L. Fuhrer, of counsel), for defendant.

Jeffrey D. Friedlander, Acting Corporation Counsel of New York City (Deborah Rand, of counsel), for plaintiff.

LUCY BILLINGS, Justice.

The people have charged defendant Paolo Giusti, the owner of a building at 25 West 35th Street, New York County, with violating N.Y .C.Admin.Code §§ 27-366 and 27-542, by operating commercial premises without a secondary means of egress and adequate emergency lighting. He moves to dismiss the accusatory instruments on the ground that the appearance tickets issued to him by the New York City Fire Department were defective. On the people's behalf the City argues that the defects, if any, do not require dismissal of the accusatory instruments. The City also files a superseding information, N.Y.Crim .Proc.Law (C.P.L.) § 100.50(2), charging the violation of Admin.Code § 27-366, which alleges that "defendant, who is the owner of [25 West 35th Street], permitted the subject premises to be operated without a secondary means of egress."

For the reasons set forth below, the court agrees with defendant in finding the appearance tickets defective, but rejects defendant's argument that the defects require dismissal and denies his motion. The defects in the appearance tickets do not permit dismissal of the charges.

The Pleadings and Prior Proceedings

According to the informations, about 2:00 a.m. September 15, 1997, Thomas Hennessy, a New York City Fire Marshal assigned to the Fire Department's Social Club Task Force, inspected a "club" on the second floor of 25 West 35th Street, premises alleged to be owned by defendant. The club, described by Hennessy as a "karaoke bar," occupies about 600 square feet and contains tables and chairs with a seating capacity of 53. Hennessy determined the club had only a single entrance and the emergency lighting was inadequate. According to the affidavits of service attached to the original accusatory instruments, on November 5, 1997, the Fire Department served defendant with two appearance tickets, number 226441989-1, alleging the violation of Admin.Code § 27-542, and number 226441990-8, alleging the violation of Admin.Code § 27-366. C.P.L. § 150.40(2).

The first page of the original informations, titled "Notice of Violation" and "COMPLAINT/INFORMATION," contains a section captioned "Date of Appearance (CRIMINAL COURT ONLY)" to be filled in by the issuing officer. The section is divided into three empty spaces, the first followed by the words "day of" and the second by the numerals "19," obviously to record the appearance date by the day of the month followed by the month of the year. The two instruments directed defendant to appear in "SAP2" (Summons Part 2) of the New York County Criminal Court, 346 Broadway, on the "8 day of 1 1998." The City appeared in SAP2 on that date. Defendant did not appear, and the matter was adjourned to February 3, 1998, at the City's request to allow the Fire Department to serve a new appearance ticket on defendant.

On February 3, defendant appeared and was arraigned on the accusatory instruments. He explained that upon receiving the appearance tickets he had not been able to determine when to appear. He had telephoned seeking clarification and been advised to appear on the adjournment date. When he appeared February 3, he moved to dismiss the accusatory instruments, on the ground that the appearance tickets served on him November 5, 1997, provided inadequate notice of the date he was to appear in court to answer the charges.

The basis for defendant's claim was that the section of the appearance tickets captioned "Date of Appearance" contained only the notations "8," "1," and "98" with no indication which of the first two numerals represented the day and which the month. Defendant presented his copies of the appearance tickets, which bear the heavily overwritten but legible notation that defendant was to appear "8 1 98." Nowhere in the "Date of Appearance" box on his copies, however, are preprinted annotations identifying in which spaces the month and day are recorded. According to defendant the appearance date was unclear and could be interpreted he was to appear August 1, 1998, rather than January 8, 1998. Defendant concludes that because he did not receive adequate notice of his right to appear in court and defend against the charges, the underlying accusatory instruments should be dismissed.

In a letter dated February 4, 1998, defendant further asserts that: "The appearance date on both violations have been obliterated by the N.Y.C.Dept. in charge of processing them and mailing them to me." The court already examined the documents February 3, 1998, however, and found that despite the overwriting, the numerals were legible.

The Defective Appearance Tickets

Appearance tickets lacking annotations prescribing the order of reference to the month and day permit an uncertainty as to the date an accused must appear in court to answer the charges where, as in this case, neither numeral exceeds the number of months in the year. Such ambiguity implicates defendant's right to "adequate notice and expeditious resolution of the charges" and "the public's interest in seeing that criminal and potentially dangerous activity is promptly addressed," People v. DiLorenzo, 149 Misc.2d 791, 794, 566 N.Y.S.2d 458 (Crim.Ct. Bronx Co.1990), and violates the statutory requirement that an appearance ticket state "a designated future time" for defendant's appearance. C.P.L. § 150.10(1).

The appearance tickets' misleading designations in this case failed to give fair notice and undermined "the purpose of appearance tickets: encouraging voluntary appearance and avoiding unnecessary arrests." People v. Gross, 148 Misc.2d 232, 237, 560 N.Y.S.2d 227 (Crim.Ct. Kings Co.1990). Reference to the day before the month in designating the appearance date, without indicating which numeral is the day and which the month, is particularly confusing where, as on the form used here, other dates are written with the month before the day. The people must refrain from using forms containing such defects and take greater care to prepare appearance ticket forms that are less confusing and meet the requirements of C.P.L. § 150.10. See People v. Gross, 148 Misc.2d at 246, 560 N.Y.S.2d 227. "The City's sloppy use of inappropriate forms reflects poorly on the seriousness and professionalism of its code enforcement." Id. at 237 n. 8, 560 N.Y.S.2d 227.

Defendant is not entitled to dismissal of the accusatory instruments, however, on the sole ground that the appearance tickets' form permitted uncertainty regarding the date to appear in court and therefore was defective. An appearance ticket is not an accusatory instrument. C.P.L. § 1.20. It is simply "a written notice issued by a public servant ... requiring a defendant to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein." C.P.L. § 1.20(26). See also C.P.L. § 150.10(1). It is "an invitation to appear," People v. Byfield, 131 Misc.2d 884, 885-86, 502 N.Y.S.2d 346 (Crim.Ct.N.Y.Co.1986), its purpose being to provide notice of the time and place an accusatory instrument will be filed against the defendant; enable him to appear voluntarily in a non-custodial setting; and spare him the trauma, embarrassment, and inconvenience attendant to a formal arrest. People v. DiLorenzo, 149 Misc.2d at 794-95, 566 N.Y.S.2d 458; People v. Gross, 148 Misc.2d at 239-40, 560 N.Y.S.2d 227.

The Criminal Court's Jurisdiction

Service of an appearance ticket on an accused does not confer personal or subject matter jurisdiction upon a criminal court. People v. Byfield, 131 Misc.2d at 885, 502 N.Y.S.2d 346; People v. MacFarlene Co. ., 130 Misc.2d 70, 71, 494 N.Y.S.2d 826 (Crim.Ct.N.Y.Co.1985); People v. Gross, 148 Misc.2d at 239-40, 560 N.Y.S.2d 227. Unlike their civil counterparts, criminal courts acquire personal jurisdiction over defendants by their appearance in court and arraignment on an accusatory instrument, which commences the criminal action. C.P.L. § 1.20(16) and (17); People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965), cert. denied, 382 U.S. 975, 86 S.Ct. 541, 15 L.Ed.2d 466 (1966). These events confer jurisdiction "regardless of how that presence is secured." People v. Brisotti, 167 Misc.2d 688, 691, 635 N.Y.S.2d 442 (Crim.Ct. Bronx Co.1995), aff'd, 169 Misc.2d 672, 652 N.Y.S.2d 206 (App.Term 1996). See also People v. MacFarlene Co., 130 Misc.2d at 71-72, 494 N.Y.S.2d 826; People v. Gross, 148 Misc.2d at 239, 560 N.Y.S.2d 227. Thus, once defendant appeared February 3, 1998, and was arraigned on the charges, the court acquired personal jurisdiction, notwithstanding that the timing of the appearance may have been at defendant's discretion and in response to an improperly served or defective appearance ticket. People v. Brisotti, 167 Misc.2d at 691, 635 N.Y.S.2d 442; People v. Benjamin Dev. Co., 155 Misc.2d 528, 530, 589 N.Y.S.2d 144 (Crim.Ct.1992); People v. DiLorenzo, 149 Misc.2d at 795, 566...