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The People of the State of New York v. Dennis Chen and Tiffany Chen

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


January 30, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
DENNIS CHEN AND TIFFANY CHEN,
APPELLANTS.

Appeal from a judgment of the Justice Court of the Village of Airmont, Rockland County (Daniel Goldman, J.), rendered March 4, 2010.

People v Chen (Dennis)

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2012

PRESENT: MOLIA, J.P., LaCAVA and IANNACCI, JJ

The judgment convicted defendants, after a non-jury trial, of filling or excavating their property without obtaining a permit.

ORDERED that the judgment is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

After a non-jury trial, defendants were convicted of filling or excavating their property without obtaining a permit in violation of section 91-3 (A) of the Airmont Village Code. On appeal, defendants contend, among other things, that the accusatory instrument charging defendants with this violation is jurisdictionally defective.

Even assuming that the accusatory instrument charges defendants with the appropriate subdivision, section 91-3 (A), of the Airmont Village Code, it does not set forth "facts of an evidentiary character" (CPL 100.15 [3]) demonstrating "reasonable cause" (CPL 100.40 [1] [c]) to believe that defendants committed this offense (see People v Casey, 95 NY2d 354 [2000]; People v Dumas, 68 NY2d 729 [1986]; People v Bottari, 31 Misc 3d 90 [App Term, 9th & 10th Jud Dists 2011]; People v South, 29 Misc 3d 92 [App Term, 9th & 10th Jud Dists 2010]). The factual portion of the accusatory instrument merely recites, in conclusory fashion, that on the date and time of the alleged incident "defendant" did violate Airmont Village Code § 91-3 (D) (1) and quotes this particular subdivision of the section, which is actually an exception to the charged offense. Consequently, as the accusatory instrument fails to contain any factual specifics from which a violation of the charged offense may be inferred, it was jurisdictionally defective and should be dismissed (see People v Dumas, 68 NY2d 729; People v Bottari, 31 Misc 3d 90; People v South, 29 Misc 3d 92).

In light of the foregoing, we need not address defendants' remaining contentions. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Molia, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: January 30, 2012

20120130

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