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The People of the State of New York v. Rubin Sterngass

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT, --
v.
RUBIN STERNGASS,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of Clarkstown, Rockland County (Scott B. Ugell, J.), rendered May 21, 2010.

People v Sterngass (Rubin)

Decided on April 13, 2012

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The judgments convicted defendant, upon jury verdicts, of failing to obtain site plan approval in an application for a building permit, parking a tractor-trailer body in a residential zoning district, operating a retail commercial business in a residential zoning district, failing to obtain a building permit and continuing construction after issuance of a stop-work order.

ORDERED that the judgments of conviction are reversed, on the law, the informations are dismissed, and the fines, if paid, are remitted.

After a jury trial, defendant was convicted of failing to obtain site plan approval in an application for a building permit (Code of the Town of Clarkstown § 290-31 [D]), parking a tractor-trailer body in a residential zoning district (Code of the Town of Clarkstown § 290-22 [A] [2]), operating a retail commercial business in a residential zoning district (Code of the Town of Clarkstown § 290-11 [A]), failing to obtain a building permit (Code of the Town of Clarkstown § 109-3 [A]) and continuing construction after issuance of a stop-work order (Code of the Town of Clarkstown § 109-5 [D]). A review of the record reveals that the accusatory instruments charging defendant with the aforementioned offenses are all jurisdictionally defective.

With respect to the charge of failing to obtain site plan approval in an application for a building permit, the factual portion of the information contained no allegation that defendant had failed to obtain site plan approval from the Planning Board of the Town of Clarkstown (see Code of the Town of Clarkstown § 290-31 [D]). The factual portion merely summarized the applicable law; thus, the information is jurisdictionally defective (see People v O'Connor, 22 Misc 3d 140[A], 2009 NY Slip Op 50395[U] [App Term, 9th & 10th Jud Dists 2009]; People v Courtney, 15 Misc 3d 140[A], 2007 NY Slip Op 51000[U] [App Term, 1st Dept 2007]). Similarly, in regard to the charge of parking a tractor-trailer body in a residential zoning district, the accusatory instrument is jurisdictionally defective as the factual portion thereof omitted any allegation that the commercial tractor-trailer that had been parked in front of defendant's residential property weighed more than "4,000 pounds' gross weight" or that the tractor-trailer had been parked in a manner which violated the ordinance (see Code of the Town of Clarkstown § 290-22 [A] [2]). The information merely stated that defendant had been given notice that he had committed the charged offenses, which is not tantamount to alleging an actual element of the offense, to wit, that defendant, in fact, had parked a registered commercial vehicle exceeding 4,000 pounds' gross weight in a residential zoning district or that defendant had parked the tractor-trailer in a manner which violated the ordinance. Furthermore, while the information provided that the violation notice was "attached and made part hereof," an examination of the notice demonstrates that it did not contain any factual allegations.

The information charging defendant with operating a retail commercial business in a residential zoning district is also jurisdictionally defective, because the factual portion of the information contained no allegation that defendant had operated a retail commercial business at the specified location and that he had failed to obtain "a permit from the Building Inspector" (see Code of the Town of Clarkstown § 290-11 [A], table 4, column 4 [7]). The information merely stated that defendant had been given notice that he had committed the charged offense, which is not tantamount to alleging an actual element of the offense, to wit, that defendant, in fact, had conducted a commercial business in a residential zoning district.

Likewise, the factual portion of the information charging defendant with failing to obtain a building permit was jurisdictionally defective since it set forth "no facts of an evidentiary character supporting or tending to support" this charge (CPL 100.15 [3]), as it simply stated that the office building "was converted to at least three residential apartment units" without alleging an actual element of the offense, to wit, that defendant had any work performed on the building requiring a building permit "including, but not limited to . . .construction, enlargement, alteration, improvement, removal, relocation or demolition" (Code of the Town of Clarkstown § 109-3 [A]; see People v Hall, 4 Misc 3d 60, 62 [App Term, 9th & 10th Jud Dists 2004]). While the information also provided that defendant had been given notice that he had committed the charged offense, an examination of the notice demonstrates that it did not contain any factual allegations.

Finally, we find that the information charging defendant with continuing construction after issuance of a stop-work order is facially insufficient. The complainant averred that he had "posted a stop-work order . . . on the defendant's building . . . for reconstruction of the roof system without first obtaining the required permit." The complainant further stated that, upon reinspection, he had "found the defendant continuing to work on said building," but failed to specifically allege that defendant had been working on the roof system, which was "the subject of the stop-work order" (Code of the Town of Clarkstown § 109-5 [D]).

As the informations are devoid of any allegations of fact that "establish, if true, every element of the offense[s] charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see CPL 100.15 [3]; People v Moore, 5 NY3d 725 [2005]; People v Casey, 95 NY2d 354 [2000]), the judgments of conviction are reversed and the accusatory instruments are dismissed.

In view of the foregoing, we pass on no other issue.

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

Decision Date: April 13, 2012

20120413

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