People v. Murray

• Decision Date: 15 February 1962
• Citation: 32 Misc.2d 757,224 N.Y.S.2d 864
• Parties: PEOPLE of the State of New York v. Harold MURRAY, Defendant-Appellant.
• Court: New York County Court

Page 864

224 N.Y.S.2d 864

32 Misc.2d 757

PEOPLE of the State of New York v. Harold MURRAY, Defendant-Appellant.

Suffolk County Court.

Feb. 15, 1962.

Bernard C. Smith, Dist. Atty. of Suffolk County, Riverhead, by Frank J. Mack, Deputy Town Atty., Town of Huntington, for the People.

Kenneth K. Rohl, Babylon, for defendant-appellant.

MAURICE W. McCANN, Judge.

Defendant appeals twelve judgments convicting him after trial before a Justice of the Peace, Town of Huntington, of violations of the Building Code and the Building Zone Ordinance of that Town. The information at bar contains four counts charging that, on four separate dates, defendant violated two provisions of the Building Code and two provisions of the Building Zone Ordinance. After trial before a Court of Special Sessions, defendant was convicted of two violations of the Building Code on each of four separate dates and of one violation of the Building Zone Ordinance on the same dates, a total of twelve convictions. The Court of Special Sessions imposed a fine of $20.00 per conviction. (Town Law, § 135; Building Code of the Town of Huntington, Art. I, § 1, C, (c), (4); Building Zone Ordinance of the Town of Huntington, Art. XII, § 9.)

With respect to the counts upon which defendant stands convicted, the information alleges as follows:

'That one Harold Murray at southerly side of Half Hollow Road, approximately 700 feet north of Eton Street, in Melville, in the Town of Huntington, County of Suffolk, N. Y., on the 10th day of March, 1960 in the afternoon of said day, and on the 1st day of April, 1960 in the afternoon of said day, and on the 11th day of April, 1960 in the forenoon and afternoon of said day and on the 19th day of April, 1960 in the afternoon of said day

'COUNT 1

did commit the offense of violating the Building Code Ordinance of the Town of Huntington, Article IV, thereof against the person or property of the People of the State of New York by wrongfully, unlawfully, wilfully knowingly did own land at said location whereat there were erected and occupied three (3) single family dwellings, to wit: structures commonly known as house trailers, each having a ground floor livable area of less than 800 square feet

'COUNT 3

did commit the offense of violating the Building Code Ordinance of the Town of Huntington, Article I, thereof against the person or property of the People of the State of New York by wrongfully, unlawfully, wilfully and knowingly did own land at said location whereat there were maintained, occupied or used three (3) buildings, to wit; structures commonly known as house trailers, each without a Certificate of Occupancy having been issued therefor by the said Building Inspector

'COUNT 4

did commit the offense of violating the Building Zone Ordinance of the Town of Huntington, Article VIII, Section 4 thereof against the person or property of the People of the State of New York by wrongfully, unlawfully, wilfully, and knowingly did own land at said location whereat there were erected three (3) buildings, to wit: structures commonly known as house trailers, each without a building permit for the erection of said buildings having been issued by the said Building Inspector'

At the opening of the trial, defendant took general exception to the sufficiency of the information, although no specification was made of the defects claimed.

To the extent that the information charges in each count that defendant committed the offenses specified on four different dates, the information is duplicitous and accordingly defective (Code of Criminal Procedure, §§ 278, 279; People v. Trepel, 207 Misc. 98, 139 N.Y.S.2d 513; see People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A .L.R. 1266; People v. Cain, 20 Misc.2d 59, 189 N.Y.S.2d 741). To avoid the prejudice to the accused apparent in the foregoing, each violation for each separate date should be alleged as a separate count. Combining violations of the same section on separate dates into one count clearly worked substantial prejudice to defendant's rights, particularly where different evidence might be required to sustain the violation as to each separate date. The Court is of the opinion that this defective pleading would require reversal of the judgments and a new trial, were it not for the matters hereafter treated.

Assuming that the information was sufficient in form, Count No . 1 charges that defendant owned land on which were erected structures having less than the allowable livable area, in violation of Article IV of the Building Code. Measuring the information against the ordinance, it is clear that Count No. 1 fails to state an offense. Article IV itself contains no penalty for violation; it simply prescribes in its several subdivisions, the requisites for various types of construction. Article I, A, (e) states that no building or structure shall be constructed, altered or repaired, etc ., except in conformity with the provisions of the Code. Article I, C, (c), (4) provides that any violation of the Ordinance is an offense. Nowhere do the provisions of the Code proscribe the owning of land on which structures violative thereof are erected. The only substantive offense stated, in this respect, is in Article I, A, (e), supra, which, as indicated prohibits the construction, alteration or repair of buildings not in conformity with code requirements. Count No. 1 of the information fails to state a violation of the Building Code and must be dismissed.

In any event, had Count No. 1 of the information properly charged a violation, there was insufficient evidence to justify the conviction. The violation alleged is the erection and occupancy of structures with less than the minimum livable area pursuant to Article IV. It is clear that house trailers are structures within the meaning of the Code (Corning v. Town of Ontario, 204 Misc. 38, 121 N.Y.S.2d 288; New York State Mobile Homes Ass'n v. Steckel, 9 N.Y.2d 533, 215 N.Y.S.2d 487, 175 N.E.2d 151). However, Article IV contains ten sections applicable to nine different types of construction. Nowhere in the record is there any evidence tending to show the type of construction employed in the structures in question, nor which of the ten sections of Article IV is involved so as to make the minimum livable area requirement applicable. Presumably, Article IV, § 8, relating to prefabricated construction is intended to apply to house trailers. But for ought that the record shows, the house trailers might be built of any one of the other nine types of construction specified in Article IV, or of a type of construction not covered by the Building Code at all. Material matters of this nature may not be the subject of judicial notice or judicial speculation, particularly in a criminal proceeding (People of City of Buffalo v. Beck, 205 Misc. 757, 130 N.Y.S.2d 354.) No sufficient evidence was adduced to sustain the violation of Article IV.

Count No. 3 charges that defendant owned land on which was maintained, occupied or used three structures without a Certificate of Occupancy having been issued therefor, in violation of Article I of the Building Code. Article I, C, (b), (1) prohibits the maintenance, occupancy or use of a structure without a Certificate of Occupancy. There is no provision barring the ownership of land on which the foregoing is done. Maintenance, occupancy or use are the offenses; not simple ownership. 'Maintain' is not defined in the Building Code. It imparts some type of activity with respect to the structures beyond title to the land, (People v. Hill, 18 Misc.2d 352, 192 N.Y.S.2d 342; In re Gabler's Will, 140 Misc. 581, 251 N.Y.S . 211, at page 217). This connection or activity must be averred. The information fails to state an offense.

People v. Lederle, 206 Misc. 244, 132 N.Y.S.2d 693, aff'd 309 N.Y . 866, 131 N.E.2d 284, and People v....