Opinion
2008-338 N CR.
Decided June 29, 2009.
Appeal from an order of the Justice Court of the Village of Massapequa Park, Nassau County (Gerard E. Giannattasio, J.), dated September 10, 2007, and from a judgment of the same court rendered January 11, 2008. The order denied defendant's motion to dismiss the accusatory instrument. The judgment convicted defendant, after a nonjury trial, of failing to keep a sidewalk in good and safe repair.
Appeal from order dismissed.
PRESENT: TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ.
Judgment of conviction reversed, on the law, accusatory instrument dismissed, and fine remitted.
The appeal from the order of September 10, 2007, which denied defendant's motion to dismiss the accusatory instrument, is dismissed as such an appeal is not authorized by the Criminal Procedure Law ( see CPL 450.10, 450.15; People v Kass , 20 Misc 3d 131[A], 2008 NY Slip Op 51431[U] [App Term, 9th 10th Jud Dists 2008]).
Defendant was convicted, after a nonjury trial, of failing to keep a sidewalk in front of his home in "good and safe repair" (Code of the Village of Massapequa Park § 298-37 [A]). Because the accusatory instrument is unsworn and factually insufficient on its face, the judgment of conviction is reversed and the accusatory instrument dismissed.
The People initially served defendant with an appearance ticket alleging defendant's violation of section 298-37 (A). An appearance ticket is not an accusatory instrument, but serves merely to compel an appearance for purposes of arraignment on a properly filed accusatory instrument, and does not give a criminal court jurisdiction over a defendant (CPL 150.10, 150.20; see People v Conklin , 14 Misc 3d 144[A], 2007 NY Slip Op 50385[U] [App Term 9th 10th Jud Dists 2007]; People v Cooperman O'Dell, NYLJ, Jan. 17, 1989 [App Term, 9th 10th Jud Dists]). Further, even were the instrument denominated a simplified information, such an instrument may not be used to charge municipal ordinance violations (CPL 1.20; 100.10 [2]; 100.25; People v Apollo , 10 Misc 3d 135[A], 2005 NY Slip Op 52117[U] [App Term, 9th 10th Jud Dists 2005]; People v Passalacqua , 7 Misc 3d 131[A], 2005 NY Slip Op 50554[U] [App Term, 9th 10th Jud Dists 2005]). To confer jurisdiction upon the Justice Court, the People 146 Misc 2d 441 [App Term, 9th 10th Jud Dists 1990]; see generally CPL 150.50), absent which any resulting judgment of conviction must be reversed and the accusatory instrument dismissed ( e.g. People v Peak Carting, Inc. , 11 Misc 3d 4, 5 [App Term, 9th 10th Jud Dists 2005]). The only other document filed by the People, denominated an information, was not verified in a manner permitted by CPL 100.30 ( People v Smith , 22 Misc 3d 131[A], 2009 NY Slip Op 50166[U] [App Term, 9th 10th Jud Dists 2009]), and, in any event, failed sufficiently to allege a factual basis for the offense charged. The factual portion of the instrument set forth little more than the conclusory assertion that defendant had violated the ordinance cited in the accusatory portion and alleged no facts as to the gravamen of the People's case, that defendant, following proper notice, knowingly and unlawfully failed to keep the sidewalk in front of his home in "good and safe repair."
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Tanenbaum, J.P., and Molia, J., concur.
Scheinkman, J., taking no part.