Appeal from an order of the Justice Court of the Village of Hempstead, Nassau County (Tanya Hobson-Williams, J.), entered June 2, 2010.
People v All State Props., LLC
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 13, 2012
PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ
The order, insofar as appealed from, granted the branches of an omnibus motion by defendant seeking (1) to controvert a search warrant and suppress all the evidence obtained as a result of the search, (2) discovery and a bill of particulars, and (3) to dismiss the accusatory instruments charging defendant with failing to maintain a fence and working on a project deemed abandoned.
ORDERED that the order, insofar as appealed from, is modified, on the law, by providing that the branches of defendant's motion seeking a bill of particulars, to controvert the search warrant and suppress all the evidence obtained as a result of the search, and to dismiss the accusatory instruments charging defendant with failing to maintain a fence and working on a project deemed abandoned are denied; as so modified, the order, insofar as appealed from, is affirmed, and the matter is remitted to the Justice Court for all further proceedings.
Following a search of the premises, executed pursuant to a search warrant issued by the Justice Court, defendant, an out-of-possession owner of the premises, was charged in seven accusatory instruments with violations of the Hempstead Village Code and the Residential Building Code of the State of New York.
Thereafter, defendant filed an omnibus motion which, in pertinent part, sought an order: (1) directing discovery and a bill of particulars, (2) dismissing the accusatory instruments on the ground that they were jurisdictionally defective, (3) dismissing the accusatory instruments on the ground that Hempstead Village Code § 52-2 (A) (7) violates the Fourth Amendment of the United States Constitution, and (4) controverting the search warrant and suppressing all evidence obtained as a result of the search. The People opposed the motion. By order entered June 2, 2010, the Justice Court, among other things, granted the branches of defendant's motion seeking discovery and a bill of particulars, and granted the branch of defendant's motion seeking the dismissal of the accusatory instruments to the extent of dismissing the accusatory instruments charging defendant with failing to maintain a fence and working on a project deemed abandoned. The Justice Court further found that Hempstead Village Code § 52-2 (A) (7), which provides, in pertinent part, "That if there are two or more motor vehicles parked on the dwelling lot registered to persons with two or more different surnames, two or more families are residing in the dwelling," to be unconstitutional as it "has no rational connection between the basic facts that the prosecutor can prove and the ultimate fact presumed." Thus, the court held that the warrant, which had been issued pursuant to what the court had found to be the unconstitutional presumption created by Hempstead Village Code § 52-2 (A) (7), had been issued without probable cause. Consequently, the court suppressed all the evidence that had been obtained as a result of the search. The People appeal from the foregoing portions of the order.
It is a defendant's burden, in the first instance, to establish standing to challenge a search warrant (see People v Hunter, 17 NY3d 725 ). A possessory or propriety interest in an item seized or place to be searched is not determinative, but is among the factors to be considered on the issue of standing (see People v Ramirez-Portoreal, 88 NY2d 99, 108-109 ). Here, defendant, an out-of-possession owner, failed to allege any additional facts which, if proved, would demonstrate a legitimate expectation of privacy in the premises (see United States v Salvucci, 448 US 83 ; People v Ramirez-Portoreal, 88 NY2d at 109) and, thus, we find that defendant lacked standing to challenge the warrant (see Town of Babylon v Gatti, 31 Misc 3d 148[A], 2011 NY Slip Op 50983[U] [App Term, 9th & 10th Jud Dists 2011]; People v M. Santulli, LLC, 29 Misc 3d 54 [App Term, 9th & 10th Jud Dists 2010]). Therefore, the Justice Court should not have reached the question of whether the presumption upon which the warrant was based (see Hempstead Village Code § 52-2 [A] ) was unconstitutional (see People v Sanchez, 248 AD2d 306, 307 ; Matter of Devon H., 225 AD2d 135, 140-141 ), and we do not pass on the constitutionality of the presumption.
The Justice Court correctly interpreted CPL 240.20 as applying to informations, irrespective of what level of offense is charged therein (unlike simplified informations, which, for the provision to be applicable, must charge a misdemeanor). Thus, pursuant to CPL 240.20, the order properly directed the People to provide defendant with the requested discovery. With respect to defendant's demand for a bill of particulars, it is noted that a bill of particulars in a criminal proceeding is not a discovery device, but merely serves to clarify an accusatory instrument (see People v Davis, 41 NY2d 678, 680 ; People v Earel, 220 AD2d 899 , affd 89 NY2d 960 ). As the accusatory instruments herein adequately apprised defendant of the charges against it in order to prepare its defense (see CPL 100.45 ; 200.95 ; People v Moyer, 75 AD3d 1004, 1007 ; People v Elliot, 299 AD2d 731, 732 ), defendant was not entitled to the additional information requested in the bill of particulars. Consequently, the branch of defendant's motion seeking to compel the People to provide a bill of particulars should have been denied.
The accusatory instrument charging defendant with failing to maintain a fence in a safe condition was jurisdictionally sufficient and should not have been dismissed. While the instrument did not explicitly employ the language of the ordinance and describe the fence as "unsafe," when accorded a "reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 ), the non-hearsay allegations of the instrument provide reasonable cause to believe that defendant committed the charged offense, and, if true, establish every element thereof (see CPL 100.15 ; 100.40 ). The allegations were adequately evidentiary and detailed to enable defendant to prepare a defense and prevent it from being reprosecuted for the same offense (see People v Dreyden, 15 NY3d 100 ).
The accusatory instrument charging defendant with working on a project deemed abandoned (Hempstead Village Code § 50-13 [B]) was also facially sufficient, as the allegations that a building inspector observed a finished basement and a fence at the premises without a final inspection or issuance of a certificate of approval or alteration and without a valid building permit provide reasonable cause to believe that defendant had committed the offense and establish, if true, every element thereof (see CPL 100.15 ; 100.40 ). Moreover, the allegations were adequately evidentiary ...