Opinion
NA 04624/07.
Decided September 8, 2008.
Honorable Kathleen Rice, District Attorney Brian J. Haran, Esq., ADA Mineola, NY 11501.
Podwin Murphy, Esqs.
Defendant's motion for an order dismissing the accusatory instrument is granted.
Defendant is accused by information ( see CPL 100.15[1],100.10) of committing the crime of operating a home improvement business without a license in violation of the Nassau County Administrative Code ( see Nassau County Administrative Code, Article 21, § 21[2]). Although it does specify the law Defendant is alleged to have violated and the elements of the crime — conducting a home improvement business without a license issued by the Nassau County Department of Consumer Affairs — the accusatory instrument has no formal accusatory part ( see CPL 100.15). By what is apparently intended as a factual part (CPL 100.15), the complainant (CPL 100.15), Consumer Affairs Investigator Carol Cusak, attests "upon information and belief" that, on or about May 4, 2005 at 19 Morgan Drive, Old Westbury, New York, Defendant: "contracted with Tania Schwarzwald for a home improvement job at the time and place aforesaid. Further the defendant conducted such business without having a license therefore. I have conducted a thorough search of the records of the Office of Consumer Affairs with respect to home improvement licenses and the defendant was not granted a license to conduct a home improvement business in the County of Nassau at the time aforesaid." The supporting deposition of Tania Schwarzwald is annexed. By it she attests that she contracted with Defendant for construction and installation of kitchen cabinets, that she paid a deposit of $8,250, that the "kitchen" was never delivered, and that a promised refund has not been paid.
Defendant now moves to dismiss the information as defective on account of its failure to contain non-hearsay allegations supporting every element of the offense charged. He specifically points to the failure to demonstrate by non-hearsay allegations that he acted without being properly licensed. The People in opposition assert that, because of the business record exception to the hearsay rule, premised as it is on the principle of inherent reliability, records systematically made for the conduct of business are admissible. They offer their opinion that there is "nothing unreliable" about Ms. Cusak's attestation that she thoroughly searched the records, and that "it would be impossible to annex the records" of home improvement licenses of the Office of Consumer Affairs to the accusatory instrument. In reply, Defendant asserts that the accusatory instrument fails to contain attestations which properly invoke the business record exception on which the People rely. Defendant is correct.
It is well settled that, in order to be sufficient, a long form information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and the defendant's commission thereof ( see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element ( see People v. Henderson, supra; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]), but conclusory statements, unsupported by "facts," are inadequate ( cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319; see also Matter of Jahron S., 79 NY2d 632, 584 NYS2d 748). The information thus must demonstrate the existence of a prima facie case ( People v Henderson, 92 NY2d 677, 685 NYS2d 409), but the prima facie case requirement "is not the same as the burden of proof beyond a reasonable doubt" ( id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true ( People v. Casey, 95 NY2d 354, 717 NYS2d 88; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document ( see People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40). A court need not, however, dismiss a long form information, and may allow the People time to formally cure, if they demonstrate both an intention, and an ability, to do so ( see People v. Casey, 95 NY2d 354, 717 NYS2d 88; see also People v. Clinkscales , 3 Misc 3d 333, 774 NYS2d 308 [Nassau Dist Ct, 2004]; People v. Cobb , 2 Misc 3d 237, 768 NYS2d 295 Crim Ct, Queens County, 2003, Zayas, J.]; People v. Romano, 188 Misc 2d 368, 728 NYS2d 868 [Crim Ct, Queens County, 2001, Modica, J.]).
Ms. Cusak's attestation that she searched the records of the Department of Consumer Affairs is, for present purposes, deemed to be true. There is, however, no factual support for her conclusion that her search was a thorough one. More importantly, and apart from the fact that her attestation about what those records do not contain is hearsay ( see People v. Clinkscales, supra; People v. Al-Ladkani, 169 Misc 2d 720, 647 NYS2d 666 [Crim Ct, Kings County, 1996 Morganstern, J.]; People v. Pierre, 157 Misc 2d 812, 599 NYS2d 412 [Crim Ct, New York County, 1993, Madden, J.]; People v. Conoscenti, 83 Misc 2d 842, 373 NYS2d 443 [Suffolk County Dist Ct, 1975, Newmark, J.]), Ms. Cusak does not claim that she is the official charged with the responsibility of keeping her employer's records, nor does she attest, for example, that she is familiar with her employer's record-keeping practices, or specify what those practices are. There is thus no prima facie demonstration that the records themselves are reliable and therefore admissible under the business records exception ( see People v. Cratsley, 86 NY2d 81, 629 NYS2d 992; People v. Kennedy, 68 NY2d 569, 510 NYS2d 853; see also Chiu-Caranese v. DeMeo , 2 AD3d 766 , 769 Sd 729 [2d Dept. 2003]; Friendly Physician PC v. Progressive Insurance Co., nor 2007NYSlipOp 52269U [Civ Ct, Kings County, 2007 [Sweeny, J.]; cf Scafidi v. Town of Islip , 34 AD3d 669 , 824 NYSd 410 [2d Dept, 2006]). Since the accusatory instrument fails to demonstrate prima facie that Defendant is not licensed to conduct a home improvement business, and since the People on this motion neither announce an intention to cure the defect nor demonstrate an ability to do, the information must be dismissed.
So Ordered.