Opinion
2007-1313 S CR.
Decided on July 2, 2008.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered July 10, 2007. The order granted that branch of defendant's motion seeking dismissal of the information on the ground of facial insufficiency.
Order reversed upon the law, defendant's motion, insofar as it sought dismissal of the information as insufficient on its face denied, information reinstated and matter remanded to the court below for determination of the alternate grounds for dismissal raised in defendant's motion that were not reached.
Defendant was charged in an information with violating section 35-3 (H) of the Islip Town Code by creating a noise disturbance with its machinery. The court below granted so much of a motion by defendant as sought dismissal of the information on the ground that it was defective on its face and did not reach other grounds set forth for said relief, including that the pertinent provision of the Islip Town Code was unconstitutional both on its face and in its application to defendant, and that there should be a dismissal in the furtherance of justice. The instant appeal by the People ensued.
In People v Baumann Sons Buses, Inc. ( 7 Misc 3d 128 [A], 2005 NY Slip Op 50488[U] [2005]), this court reversed a judgment of conviction on the ground that the accusatory instrument was facially insufficient to charge the defendant with violating section 35-3 (D) of the Islip Town Code, analogous to the instant section 35-3 (H) in that it governed noise. We observed, inter alia, that the information failed to allege the public nature of the nuisance ( see e.g. People v Canner, 40 NY2d 886). The Court of Appeals, after having initially granted leave to the People to appeal in People v Baumann Sons Buses, Inc., dismissed the appeal but observed that, "By its plain terms, the ordinance proscribes sound that annoys or disturbs 'a' reasonable person of normal auditory sensitivities. The information thus contained allegations sufficient to establish, if true, every element of the offense as defined in the Islip Town Code" ( People v Baumann Sons Buses, Inc. , 6 NY3d 404, 408). The Court of Appeals further noted, "In dismissing the accusatory instrument as 'defective,' the Appellate Term faulted the failure of the information to allege that the noise disturbance claimed to have been caused by defendant constituted a public nuisance. However, assuming that such a requirement exists, it arises not from the ordinance as adopted by the Islip Town Board, but from this Court's precedent suggesting that an anti-noise statute proscribing merely private disputes may be unconstitutionally vague ( see People v New York Trap Rock Corp., 57 NY2d 371, 380; People v Bakolas, 59 NY2d 51, 53-54)" ( id.).
We are of the view that in light of the foregoing language by the Court of Appeals as well as that of CPL 100.40, which expressly prescribes the conditions for an information to be deemed sufficient on its face, the information before us satisfies the elements set forth in Islip Town Code § 35-3 (H). However, the Court of Appeals, in People v Baumann Sons Buses, Inc. ( 6 NY3d 404 , supra), also indicated that a substantial issue remains as to whether the anti-noise provisions of the Islip Town Code would survive constitutional scrutiny. Under the circumstances, therefore, the order is reversed and the matter is remanded to the court below for a determination of the alternate grounds for dismissal of the accusatory instrument raised in defendant's motion.
Rudolph, P.J., and McCabe, J., concur.
Tanenbaum, J., taking no part.