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The People of the State of New York v. Sung Kim

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


December 10, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
SUNG KIM,
APPELLANT.

Appeal from a judgment of the Justice Court of the Village of Sands Point, Nassau County (Jerome S. Boros, J.), rendered June 3, 2011.

People v Sung Kim

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This opinion is uncorrected and will not be published in the printed Official Reports.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

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

The judgment convicted defendant, upon her plea of guilty, of causing the removal, destruction or substantial alteration of a tree on her property without a permit and imposed a fine of $5,000.

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

The accusatory instrument charged defendant with the "removal/destruction of [a] tree without [a] permit" in violation of Village of Sands Point Code § 157-3 (B). Defendant pleaded guilty to the charged offense, and the Justice Court imposed the maximum fine of $5,000.

Village of Sands Point Code § 157-3 (B) provides that "[i]t shall be unlawful for any person without a permit to remove, destroy or substantially alter or to cause the removal, destruction or substantial alteration of any tree or the habitat of any tree located on any real property within the Village of Sands Point having a trunk circumference greater than 20 inches . . ."

A review of the record reveals that the accusatory instrument is jurisdictionally defective as it merely stated that "as per [the] Village Building Department [the code enforcement officer] found [a] destroyed tree at 27 Hoffstot Lane" and that "[n]o permit [was] recorded." The facts alleged therein are not tantamount to alleging an actual element of the offense, to wit, that defendant had removed, destroyed, or substantially altered or caused the removal, destruction, or substantial alteration of the subject tree, which had a trunk circumference that measured greater than 20 inches (see Village of Sands Point Code § 157-3 [B]).

As the accusatory instrument is devoid of any allegations of fact that "establish, if true, every element of the offense 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 judgment of conviction is reversed and the accusatory instrument is dismissed.

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

LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 10, 2012

20121210

© 1992-2012 VersusLaw Inc.



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