People v. Mahoney

• Decision Date: 10 March 2011
• Citation: 2011 N.Y. Slip Op. 21086,924 N.Y.S.2d 755,31 Misc.3d 887
• Parties: The PEOPLE of the State of New Yorkv.Jeffrey MAHONEY and Deborah Mahoney, Defendants.
• Court: New York Justice Court

31 Misc.3d 887

924 N.Y.S.2d 755

2011 N.Y. Slip Op. 21086

The PEOPLE of the State of New York

v.Jeffrey MAHONEY and Deborah Mahoney, Defendants.

Justice Court, Town of Hyde Park,

March 10, 2011.

James P. Horan, Town Attorney, Hyde Park, for plaintiff.Jeffrey Mahoney, defendant pro se.Deborah Mahoney, defendant pro se.DAVID L. STEINBERG, J.

Defendants Jeffrey Mahoney and Deborah Mahoney move to dismiss the information charging seven counts of Conducting Animal Husbandry Without Proper Approvals [Hyde Park Town Code (HPC) §§ 108–5.14, 108.2.2]. They argue their factual innocence in that the animal husbandry provisions of the Town Code are being improperly applied to chickens they own and possess on their property as domesticated household pets. Although the defendants do not specify the section or sections of the Criminal Procedure Law applicable to their motion to dismiss, this court will treat their motion as one that is based on the grounds that the accusatory instrument is jurisdictionally defective because it is facially insufficient (CPL § 170.30[1][a] ) and further that there exists some other jurisdictional or legal impediment to conviction of the defendants for the offense charged, i.e. factual innocence. (CPL § 170.30[1][f] ).

The People charged defendants in one information with Conducting Animal Husbandry Without the Proper Approvals in violation of HPC § § 108–5.14, 108–2.2. The factual part of the information alleges:

I, Bruce J. Donegan, “observed chickens and other animals typically associated with farming and animal husbandry on 8/3/10, 8/25/10, 9/13/10, 9/20/10, 9/28/10, 10/6/10, 10/26/10.”

The information alleges the defendants committed such multiple zoning violations at 17 Yates Avenue in the Town of Hyde Park, Dutchess County, State of New York.

The “household pets” exception claimed by defendants is set forth in the defining statute of HPC § 108–2.2 which states animal husbandry is “the keeping, grazing, breeding, feeding and care of animals other than household pets.” Thus, the Town Code specifically creates a “household pets” exception to the “no animal husbandry without site plan approval” provisions in § 108–5.14 of the Code.

Factual Innocence claim

Defendants assert a claim of factual innocence entitling them to dismissal of the charge. They rely upon the household pets' exception within the Town Code's definition of animal husbandry. HPC § 108–2.2. They provide letters from several Town Board members confirming they had appeared before the Town Board to advise they intended to purchase chickens as domestic pets and not for husbandry. They state no opposition was raised by the Town Board regarding their intended purchase of the chickens. Indeed, the two Town Board members who wrote letters in support of defendants confirm there was no objection by that body to the defendants' expressed desire to purchase chickens as domestic pets. Letter of Councilman Michael Athanas, dated November 17, 2010; letter of Councilwoman Sue Serino, dated November 18, 2010. Other letters from neighbors are submitted in support of defendants' claim the chickens are being kept as household pets.

Defendants make a compelling case for dismissal on factual innocence grounds before trial. Their extensive factual statements are not contradicted by the People who have not filed answering papers in this case. It is well settled that “[n]ormally what is not denied is deemed to be conceded.” People v. Wright, 86 N.Y.2d 591, 595–596, 635 N.Y.S.2d 136, 658 N.E.2d 1009 (1995); People v. Cole, 73 N.Y.2d 957, 540 N.Y.S.2d 984, 538 N.E.2d 336 (1989); People v. Ciaccio, 47 N.Y.2d 431, 438, 418 N.Y.S.2d 371, 391 N.E.2d 1347 (1979); People v. Gruden, 42 N.Y.2d 214, 216, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977). Nevertheless, the People are only obligated at this stage to present a facially sufficient accusatory instrument. Unlike the civil law where a motion for summary judgment may result in an accelerated judgment in favor of a party based upon undisputed or proven facts, our criminal procedural law provides no similar remedy for a pre-trial judicial determination of the facts based upon a defendant's assertion of factual innocence.

Accordingly, the motion to dismiss based upon factual innocence grounds is denied.

Facial sufficiency

The facial sufficiency of the accusatory instrument is the basis for the court's authority to proceed with the criminal action. If the instrument is facially insufficient, the criminal action must be dismissed. CPL § 170.30(1)(a); Preiser, Practice Commentary, McKinney's Cons. Laws of New York (2004), Book 11A, CPL § 100.40, p. 387. Facial sufficiency is a non-waiverable, jurisdictional prerequisite to a prosecution. People v. Alejandro, 70 N.Y.2d 133, 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); People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977).

The Court of Appeals has repeatedly held with respect to facial insufficiency, “so 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, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999).

Indeed, “the law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and factual behavior therefore be sufficiently alleged ...” People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 (App.Term, 2nd Dept.2005). The complete omission of an element from the face of the accusatory instrument, however, is a jurisdictional defect that requires dismissal. CPL § 100.40 [1][b][c]; People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Inserra, 2 N.Y.3d 741, 778 N.Y.S.2d 467, 810 N.E.2d 920 (2004).

An information, to be sufficient, must meet three statutory tests. First, it must contain an accusatory section and a factual section setting forth “facts of an evidentiary character supporting or tending to support the charges.” CPL § 100.15, § 100.40(1)(a).

Second, the factual part, together with any supporting depositions, must provide reasonable cause to believe the defendant committed the offense charged. CPL § 100.40(1)(b). “Reasonable cause” exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.10(2).

Third, in additional to the reasonable cause requirement, an information must contain non-hearsay allegations in the factual part of the information and in any supporting depositions, which, if true, establish “every element of the offense charged and defendant's commission there.” CPL § 100.40(1)(c); People v. Kalin, 12 N.Y.3d 225, 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009). This last requirement is known as the “prima facie case' requirement,” People v. Jones, 9 N.Y.3d 259, 262, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007); People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987), meaning that a facially sufficient information must contain enough factual allegations to establish a prima facie case. This additional showing is required because, unlike a felony complaint, a misdemeanor information “is not followed by a preliminary hearing and a Grand Jury proceeding” and consequently, there is no pretrial proceeding at which the People are required to present actual evidence demonstrating a prima facie case as with an indictment following a felony complaint. People v. Alejandro, supra at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71.

When assessing the facial insufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People ( see People v. Gonzalez, 184 Misc.2d 262, 708 N.Y.S.2d 564 [App. Term, 1st Dept.] ), lv. denied, 95 N.Y.2d 835, 713 N.Y.S.2d 142, 735 N.E.2d 422 [2000]. However conclusory allegations are insufficient ( see, People v. Dreyden, 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010]; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ).

Critical to the inquiry in this case is whether if a defining statute, as here, contains an exception, the absence of the existence of the exception is a material element that must be alleged in the accusatory instrument. As the Court of Appeals explained in People v. Santana, 7 N.Y.3d 234, 818 N.Y.S.2d 842, 851 N.E.2d 1193 (2006):

“[e]ssential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. ut when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense” Santana, supra at 236–237, 818 N.Y.S.2d 842, 851 N.E.2d 1193, quoting People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 (1972).

Similarly, more recently in People v. Davis, 13 N.Y.3d 17, 884 N.Y.S.2d 665, 912 N.E.2d 1044 (2009), the Court of Appeals addressed an exception contained in a New York City Parks Department rule which provided that no person shall fail to obey park signs, “except such sign may be disregarded upon order” by a police officer or parks department employee. The...