People v. Peak Carting, Inc., 2005-442 S CR.

CourtNew York Supreme Court — Appellate Term
Citation11 Misc.3d 4,812 N.Y.S.2d 218,2005 NY Slip Op 25546
Docket Number2005-442 S CR.
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PEAK CARTING, INC., Appellant.
Decision Date19 December 2005
11 Misc.3d 4
812 N.Y.S.2d 218
2005 NY Slip Op 25546
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
PEAK CARTING, INC., Appellant.
2005-442 S CR.
Supreme Court, Appellate Term, Second Department.
December 19, 2005.

Appeal from a judgment of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered December 17, 2004. The judgment convicted defendant, after a nonjury trial, of dumping prohibited waste.

[11 Misc.3d 5]

Robert J. Cava, P.C., West Babylon, for appellant.

Karen M. Wilutis, Town Attorney, Farmingville (Harold A. Steuerwald of counsel), for respondent.


OPINION OF THE COURT

MEMORANDUM.

Judgment of conviction unanimously affirmed.

Defendant was charged with violating section 45-4 (H) of the Code of the Town of Brookhaven in that at the time, date and place specified, it dumped debris on a premises known as the Liere Farm which were not a public disposal facility or private disposal facility licensed by the Town. Following a nonjury trial, defendant was convicted as charged.

An appearance ticket is not an accusatory instrument and does not give the court jurisdiction over the defendant. Section 150.50 of the Criminal Procedure Law requires that a legally sufficient accusatory instrument be filed at or before the time such appearance ticket is returnable. This court has consistently held that after issuance of an appearance ticket, the failure to file with the court a proper accusatory instrument mandates reversal and dismissal of the summons (see People v. McKee, NYLJ, Mar. 3, 1997, at 30, col 4 [App Term, 9th & 10th Jud Dists]; People v. Alberi, NYLJ, Feb. 7, 1990, at 26, col 2 [App Term, 9th & 10th Jud Dists]; People v. Cooperman, NYLJ, Jan. 17, 1989, at 26, col 4 [App Term, 9th & 10th Jud Dists]). In the case at bar, following the issuance of an appearance ticket, the People filed with the court a legally sufficient accusatory instrument. Thus, the court's jurisdiction over the defendant was conferred by the accusatory instrument and defendant's arraignment thereon, not by the appearance ticket.

Although not referred to in the record, defendant on this appeal makes note of a 1999 action initiated by the Town of Brookhaven in Supreme Court, Suffolk County, against Robert Liere et al. The Town in said action is seeking damages together with an order enjoining the Liere Farm from operating what it alleged is a solid waste management facility (garbage dump) on its premises without the proper permits. The Supreme Court (John J.J. Jones, Jr., J.), following a lengthy hearing that consisted of 20 witnesses and approximately 100 exhibits, denied

11 Misc.3d 6

the Town's request for a preliminary injunction. Justice Jones, in his order dated January 6, 2000, noted that the Town failed to show a likelihood of success on the merits as it only demonstrated that the farm was receiving trees, branches, leaves and stumps which it processed with chippers to produce mulch which it tilled into the farm acreage or sold. The court further noted that the Town failed to demonstrate any irreparable injury. On March 24, 2005, Supreme Court Justice Peter Fox Cohalan signed an order to show cause restraining the Town from issuing tickets to the Liere Farm's suppliers charging a violation of section 45-4 (H) of the Code of the Town of Brookhaven as to landscaping debris. However, the decisions by said justices are not dispositive of the instant matter since the defendant is not a party to the Supreme Court action, the restraining order issued by Justice Cohalan was only temporary and not a final determination of the merits, and the underlying basis of the action was the farm's operation of the premises as a waste management facility without the requisite permits. Similarly, defendant may not rely on the aforementioned temporary orders to establish that the premises in issue were being used as a farm and therefore it is authorized to dump the bramble and brush on said premises in accordance with section 85-405 of the Code of the Town of Brookhaven (Farmland Bill of Rights). Moreover, defendant herein offered no proof at trial to establish that the premises were being operated as a farm.

Challenges to the constitutionality of statutes should be raised by motion, upon notice to the People, prior to trial and in writing (see CPL 170.45, 210.20, 210.45; People v. Key, 87 Misc 2d 262 [1976], affd 45 NY2d 111 [1978]; see also People v. Guilford, NYLJ, Nov. 10, 1986, at 17, col 1 [App Term, 9th & 10th Jud Dists]; People v. Hollstegge, NYLJ, July 3, 1984, at 12, col 5 [App Term, 9th & 10th Jud Dists]). Here the record indicates that said motion was not made prior to trial. Defendant first raised the issue in its posttrial memorandum, after the People had rested. In such situations, this court has held that said issues were not properly preserved for appellate review. However, since the court below considered the issue in the interest of justice (see CPL 255.20 [3]),...

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9 practice notes
  • Dolloff v. Dolloff (In re Estate of Dolloff), 2011-4397/B
    • United States
    • New York Surrogate Court
    • June 29, 2015
    ...[1976] ; see also Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 [1991] )” (People v. Peak Carting, Inc., 11 Misc.3d 4, 8, 812 N.Y.S.2d 218 [2005] ; see also People v. Stuart, 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ). In an “as applied” chall......
  • People v. Noga
    • United States
    • New York Supreme Court — Appellate Term
    • September 18, 2015
    ...defendant's conduct" (People v. Stuart, 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ; see e.g. People v. Peak Carting, Inc., 11 Misc.3d 4, 8, 812 N.Y.S.2d 218 [App.Term, 9th & 10th Jud.Dists.2005] ). To be facially constitutional, the statute need provide "only a reasonable de......
  • People v. Tomossone
    • United States
    • New York Supreme Court Appellate Division
    • October 10, 2012
    ...because the claim was not “raised by motion, upon notice to the People, prior to trial and in writing” (People v. Peak Carting, Inc., 11 Misc.3d 4, 6 [App Term, 9th & 10th Jud Dists 2005]; see generally People v. Iannelli, 69 N.Y.2d 684 [1986] ). In any event, the challenge lacks merit. Pen......
  • People v. Taffet, 2014-2297 S CR
    • United States
    • New York Supreme Court — Appellate Term
    • February 22, 2016
    ...this court, as it was not "raised by motion, upon notice to the People, prior to trial and in writing" (People v Peak Carting, Inc., 11 Misc 3d 4, 6 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; see People v Tomossone, 37 Misc 3d 131[A], 2012 NY Slip Op 51978[U], *1 [App Term, 2d Dept, 9t......
  • Request a trial to view additional results
9 cases
  • Dolloff v. Dolloff (In re Estate of Dolloff), 2011-4397/B
    • United States
    • New York Surrogate Court
    • June 29, 2015
    ...[1976] ; see also Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 [1991] )” (People v. Peak Carting, Inc., 11 Misc.3d 4, 8, 812 N.Y.S.2d 218 [2005] ; see also People v. Stuart, 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ). In an “as applied” chall......
  • People v. Noga
    • United States
    • New York Supreme Court — Appellate Term
    • September 18, 2015
    ...defendant's conduct" (People v. Stuart, 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ; see e.g. People v. Peak Carting, Inc., 11 Misc.3d 4, 8, 812 N.Y.S.2d 218 [App.Term, 9th & 10th Jud.Dists.2005] ). To be facially constitutional, the statute need provide "only a reasonable de......
  • People v. Tomossone
    • United States
    • New York Supreme Court Appellate Division
    • October 10, 2012
    ...because the claim was not “raised by motion, upon notice to the People, prior to trial and in writing” (People v. Peak Carting, Inc., 11 Misc.3d 4, 6 [App Term, 9th & 10th Jud Dists 2005]; see generally People v. Iannelli, 69 N.Y.2d 684 [1986] ). In any event, the challenge lacks merit. Pen......
  • People v. Taffet, 2014-2297 S CR
    • United States
    • New York Supreme Court — Appellate Term
    • February 22, 2016
    ...this court, as it was not "raised by motion, upon notice to the People, prior to trial and in writing" (People v Peak Carting, Inc., 11 Misc 3d 4, 6 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; see People v Tomossone, 37 Misc 3d 131[A], 2012 NY Slip Op 51978[U], *1 [App Term, 2d Dept, 9t......
  • Request a trial to view additional results

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