Opinion
2006-1472 S CR.
Decided May 29, 2008.
Appeal from a judgment of the District Court of Suffolk County, First District (Toni A. Bean, J.), rendered August 16, 2006. The judgment convicted defendant, after a nonjury trial, of engaging in a business as a home improvement contractor without a license.
Judgment of conviction reversed on the law, fine, if paid, remitted, and matter remanded to the court below for further proceedings.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ.
The accusatory instrument is facially sufficient in both the accusatory portion and the supporting facts. The accusatory instrument tracked the language of Suffolk County Code § 345-17(A) ( see People v Yakubova , 11 AD3d 644 , 645; People v Prevete , 10 Misc 3d 78 , 80 [App Term, 9th 10th Jud Dists 2005]), and affording the factual portion, as supplemented by the supporting depositions, a "fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360), the instrument sufficed, for pleading purposes, to allege that the offense was committed at a premises to which the sanction applies. Morever, it is not necessary that an accusatory instrument incorporate therein exclusions not contained in the statute or ordinance itself. The "[e]ssential allegations are generally determined by the [law] defining the crime. If the defining [sanction] contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the [sanction], the exception generally is [a proviso which represents] a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" ( People v Kohut, 30 NY2d 183, 187; see also People v Santana , 7 NY3d 234 ). Here, the exclusion for unlicensed home improvement work performed on homes where three or more families reside (Suffolk County Code § 345-16) is not part of the defining sanction, but merely "a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial" ( People v Santana, 7 NY3d at 236).
However, as the People properly concede, the record does not disclose that defendant executed a written jury trial waiver in accordance with CPL 320.10. Accordingly, the judgment of conviction is reversed and a new trial ordered ( e.g. People v Lewis, 308 AD2d 550, 551; People v Baer, 265 AD2d 335; People v Davidson, 136 AD2d 66, 70; People v Quinn, 158 Misc 2d 1015, 1016 [App Term, 9th 10th Jud Dists 1993]; see also People v Zawistowski, 168 AD2d 950).
Rudolph, P.J., Tanenbaum and Molia, JJ., concur.