People v. Gross

• Decision Date: 11 June 1990
• Citation: 148 Misc.2d 232,560 N.Y.S.2d 227
• Parties: The PEOPLE of the State of New York v. Morris GROSS, Defendant. --SAP II
• Court: New York City Court

Page 227

560 N.Y.S.2d 227

148 Misc.2d 232

The PEOPLE of the State of New York v. Morris GROSS, Defendant.

Criminal Court of the City of New York Kings County, Jury Part 12--SAP II.

June 11, 1990.

Peter L. Zimroth, Corp. Counsel (Linda Stanch, Marilyne Mason, Gabriel Taussig, John Russo, Fabiola Jean-Gilles, of counsel; Samuel Moriber, Student Intern on the briefs), for the City.

Shea and Gould, New York City (Howard Adler, Peter Neger, Eric Zimmerman, of counsel), for defendant.

MICHAEL D. STALLMAN, Judge:

Defendant moves to dismiss twelve separate actions which charge him with penal offenses under the New York City Building Code (Administrative Code of City of New York § 27-101 et seq.). The motions raise significant jurisdictional questions which this Court must resolve, and disturbing policy questions which this Court cannot resolve.

PROCEDURAL HISTORY

Defendant is charged with untitled offenses which punish non-compliance with code requirements after notice. N.Y.C.Admin.Code §§ C26-85.5 and C26-86.5[a], recodified as §§ 26-246 and 26-248[a]; new §§ 26-248(d) and 26-125. ¹ Each docket alleges that defendant did not comply with elevator maintenance requirements in two residential buildings. Admin.Code §§ C26-105.1, C26-105.2 (now §§ 27-127 and 27-128); Building Code Reference Standard RS 18-1. Defendant apparently owns one building, and controls the other as the sole shareholder of its corporate owner.

Each docket contains a Buildings Department form letter bearing a checklist of Code violations, ² and a warning to correct the marked items within ten days on penalty of being "summoned to appear in the Criminal Court." Each letter bears stamped signatures of the commissioner and borough superintendent and an entry, "filed by [usually illegible]." There is no indication of who actually prepared it, or whether it was based on personal inspection, departmental records or a received complaint. The actual occurrence date of the administrative violations thus cannot be determined. The City claims, and defendant disputes, that the twelve letters were mailed to the defendant over a five year period beginning in 1981. No proof of service or evidence of mailing has been offered.

The City apparently did nothing until December, 1984, when it brought three criminal actions based on violation letters issued in 1982, 1983 and 1984. The other nine matters, including five from 1981, were allowed to lie fallow until 1987.

The City initiated each action by issuing what appears to be a parking ticket form. Defendant concedes that he received three parking tickets in the mail ³ at his office, on or about December 20, 1984. Each ticket listed only the underlying Code sections, which simply state an owner's responsibility to maintain the building and keep service equipment in working order. Admin.Code §§ C26-105.1, C26-105.2 (now §§ 27-127 and 27-128). Curiously, no ticket listed any criminal violation, much less the penal sections charged in the informations filed ⁴ to commence each action. Admin.Code §§ C26-85.5; C26-86.5[a]. The tickets were returnable in court on January 28, 1985. Warrants were issued when the defendant did not appear.

While these warrants were outstanding, the City mailed defendant nine other such tickets on or about July 6, 1987 returnable on August 10, 1987. Defendant concedes mailing and receipt. These tickets also listed as violations the underlying Code sections, but not the penal sections charged in the contemporaneously filed informations. Again, warrants were issued when defendant did not appear on the return date. All twelve warrants remained outstanding until May 26, 1988, when defendant surrendered pursuant to the City's request, and was arraigned on the twelve dockets. The City answered ready on August 15, 1988.

All cases were repeatedly adjourned, on consent and without explanation, for nearly a year. Protracted motion practice ensued. After oral argument of one set of motions to dismiss, but without seeking leave to amend, the City filed new instruments alleging Section 26-125 on all dockets, and Section 26-248(d) on the 1987 dockets; defendant again moved to dismiss. ⁵

I. PERSONAL JURISDICTION

Defendant asserts that this Court lacks jurisdiction over the defendant's person, claiming that the City had no authority to issue the tickets, which he characterizes as "summonses." The City, however, classifies them as appearance tickets.

A. Taxonomy. The subject documents plainly bear the word "summons," or, depending on the variant of the form used, "complaint/information". ⁶ Directly beneath is printed either "Notice of Violation" or "Copy of Notice of Violation." Like other antiquated City forms still in use which purport to be summonses (e.g., the "universal summonses" used by the police to charge petty offenses), the tickets in question are not summonses. The title of a form is not dispositive. CPL 150.10; see Bellacosa, Practice Comm. to CPL 150.10, 11A McKinney Cons.Laws of N.Y. at 394. Nevertheless, some courts have assumed that a document is a summons simply because it purports to be one. See e.g., People v. MacFarlene Co., 130 Misc.2d 70, 494 N.Y.S.2d 826 (Crim.Ct., N.Y.Co.); People v. Durch, 140 Misc.2d 353, 530 N.Y.S.2d 956 (Crim.Ct.Kings Co.).

A summons is a process issued by a local criminal court. It commands a person accused of an offense by an information or a complaint previously filed with the court, to appear at a specified time for arraignment on the charges. CPL 130.10(1). In contrast, an appearance ticket is defined as

"... a written notice issued and subscribed by a police officer or other public servant authorized by state or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title." CPL 150.10.

Each of the tickets was issued, not by a court, but by an elevator inspector. Although it directed defendant to appear on a return date in Criminal Court, ⁷ no information had yet been filed charging him with an offense.

While each ticket contains most data required of an appearance ticket, it is deficient in the most important respect: it fails to give fair notice. Its misleading appearance and contradictory wording (e.g., instructions on some forms for paying a penalty by mail) do not adequately convey that the City is bringing a criminal action. ⁸ It undermines the purpose of appearance tickets: encouraging voluntary appearance and avoiding unnecessary arrests. Under circumstances not present here, it could cause injustice amounting to a due process violation. Nevertheless, classification of the subject tickets is not material to this Court's determination. See part I(c) infra.

B. Authority to Issue the Tickets

The Municipal Home Rule Law specifically enables local legislative bodies to authorize the issuance of appearance tickets to enforce safety provisions of local laws. Mun.Home Rule L. § 10, subd. 4(a). It also enables the local legislature to empower such issuance "by a public servant who, by virtue of office, title or position is authorized or required to enforce any such statute, local law, ordinance, rule or regulation relating to parking, licensing of occupations or business, fire prevention and safety, health and sanitation, building, zoning and planning ..." Id. See, in accord, CPL 150.20(3). The City Council was thereby empowered to enact the Administrative Code provisions providing for the issuance of "notices" and their service by "any officer or employee of the department, or by any person authorized by the superintendant." Admin.Code § 26-244(a), (c), formerly § C26-84.5(a), (c).

The Administrative Code, in this respect, as in many others, is not a model of clarity. The cited section refers to "all notices or orders required or authorized ... directing anything to be done;" it does not specifically mention appearance tickets. This is not surprising, since it predates the Criminal Procedure Law's invention of the appearance ticket. Contextually, however, the section's language may well embrace appearance tickets; read together with the Code's penal provisions, it inferentially contemplates the use of a departmental notice to initiate a criminal action. ⁹

C. Service by Mail

Defendant further argues that, even if the tickets were deemed appearance tickets, service by mail would have been improper. Defendant cites CPL 150.40(2), which provides that "an appearance ticket other than one issued for a traffic infraction relating to parking, must be served personally." The City, however, cites Administrative Code Section 26-244(c), which provides for service of departmentally issued notices by mail. ¹⁰

In a criminal action, unlike a civil action, the court's exercise of jurisdiction does not depend on proper service of process. All that is required is that the defendant come, or be brought, before the court for arraignment. See People v. Haber, 20 Misc.2d 272, 191 N.Y.S.2d 497 (Ct.Special Sessions, App.Pt., 2 Dept.); People v. Sessa, 43 Misc.2d 24, 26, 250 N.Y.S.2d 193 (Crim.Ct., N.Y.Co.); People v. Byfield, 131 Misc.2d 884, 502 N.Y.S.2d 346 (Crim.Ct., N.Y.Co.).

Proper service is vital to a civil action. It not only gives a defendant constitutionally adequate notice (see Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865), it is a symbolic exercise of state power. Matter of Bonesteel, 16 A.D.2d 324, 228 N.Y.S.2d 301 (3d Dept.); see City of New York v. Chemical Bank, 122 Misc.2d 104, 470 N.Y.S.2d 280 (Sup.Ct., N.Y.Co.). It conveys that a private party is invoking the sovereign's power to redress what is...