Opinion
2015–2565 N CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Allan A. LEVIN, Appellant.
Harold A. Steuerwald, Bellport, for appellant. Leventhal, Mullaney & Blinkoff (Jeffrey L. Blinkoff of counsel), Mineola, for respondent.
Harold A. Steuerwald, Bellport, for appellant.
Leventhal, Mullaney & Blinkoff (Jeffrey L. Blinkoff of counsel), Mineola, for respondent.
PRESENT: JERRY GARGUILO, J.P., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
Appeal from a judgment of the Justice Court of the Village of Laurel Hollow, Nassau County (Joseph D'Elia, J.), rendered October 7, 2015. The judgment convicted defendant, after a nonjury trial, of violating sections 302.5, 303.3, 305.1 (three counts), 307.1, 505.1, 605.1, and 704.1 of the New York State Property Maintenance Code. ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
Defendant allegedly owns a residence in the Village of Laurel Hollow, Nassau County. On July 21, 2014, Jeffrey A. Hartman, the Superintendent of the Building Department and the code enforcement official for the Village at the time, applied to the Justice Court for an "Administrative Inspection Warrant." Mr. Hartman indicated therein, among other things, that, based on various complaints that had been received regarding the property, several visual inspections of the property by Village code enforcement personnel, beginning in 2012, had been conducted and it had been determined that the property was in poor condition, overgrown with weeds and other plants, and appeared to be abandoned. The home was unsecured, and there was a hole in its roof. The fence surrounding a swimming pool was not secured. The property was also apparently in foreclosure. Defendant never responded to correspondence that had been sent to him. Village code enforcement officials were unable to obtain access to the interior of the home on the subject property. Permission to make the inspection had been denied by defendant and the bank. Mr. Hartman concluded that, upon information and belief, further attempts to conduct an interior inspection or collect materials would be to no avail. The application was supported by a detailed affidavit setting forth the results of the previous exterior inspections.
On July 30, 2014, the Justice Court signed an administrative inspection warrant which, among other things, authorized Hartman to enter upon and inspect the interior and exterior of the premises. The results of the search were set forth in a report to the Justice Court dated September 4, 2014.
On October 15, 2014, Mr. Hartman issued nine appearance tickets to defendant to appear in the Justice Court on November 5, 2014, based on alleged violations of the New York State Property Maintenance Code (hereinafter the Code). An information, dated October 30, 2014, was signed and sworn to by former Code Enforcement Official Jeffrey Hartman, who stated that his last day as a Village of Laurel Hollow code enforcement official had been October 11, 2014. The information contained nine counts of violations of the Code. Each count states that, "upon information and belief, the Defendant, Allan A. Levin, owner of the [subject] premises," violated the Code, in a specific manner.
On December 26, 2014, defendant moved, among other things, to dismiss the information based on facial insufficiency, in that the factual part of the information did not allege that defendant had been served with an order to remedy the alleged conditions within a specified time period, in accordance with Executive Law § 382(2), and had failed to comply with such an order. In an order dated March 13, 2015, the Justice Court denied the branch of defendant's motion seeking to dismiss the information.
Defendant moved for leave to reargue his prior motion. Among other things, defendant argued that the Justice Court did not address the branch of his prior motion which sought dismissal of the information on the ground that it failed to allege that he had been served with an order to remedy any condition found to exist in, on, or about any building pursuant to Executive Law § 382(2) and had failed to comply therewith. In opposition, the People argued, among other things, that, with respect to the failure to "allege the serving of a Notice to Remedy pursuant to" Executive Law § 382(2), they "need not allege each and every Section of the law in the accusatory instrument which may or may not be relevant to the case. [It is sufficient] to allege facts that support the offense charged and that the Defendant committed such acts." The People also argued that, as defendant was charged with a violation under Executive Law § 382(1), rather than a misdemeanor under Executive Law § 382(2), "there was no need to serve an Order to Remedy."
In an order dated May 21, 2015, the Justice Court, in effect, granted leave to reargue and, thereupon, adhered to its prior determination.
At a nonjury trial, the court granted the prosecutor's request to have certified copies of orders to remedy, together with proof of mailing, admitted into evidence. Defendant's counsel objected on the ground that the accusatory instrument did not allege that any orders to remedy had been issued to defendant.
In a decision after trial dated September 25, 2015, the Justice Court found, among other things, that:
"The Court finds no jurisdictional defects in the accusatory instrument upon which the trial proceeded. Any issue with regard to the lack of ‘notices to remedy ’ having been served upon the defendant are simply resolved as follows. The action is brought pursuant to Section 381.2 of the New York State Executive Law which permits local governments to administer and enforce the Uniform Fire Prevention and Building Code of the State of New York.... The information in this case is pursuant to New York State Executive Law Section 382.1, the defendant is not charged with any misdemeanors and the Village has the right to issue an appearance ticket for violations, among its other rights to issue notices to remedy a condition found to exist in or about any building in violation of the Uniform Fire Prevention and Building Code of the State of New York.
Section 382.2 deals with misdemeanors and requires that a notice to remedy be served, prior to the bringing of any action, by certified mail or registered mail. Therefore since this action is a proceeding on violations in accordance with Section 382.1 there are no jurisdictional defects or needs for notices or orders to remedy any violations, since Section
382.1 authorizes the issuance of appearance tickets by local governments."
The court found defendant guilty of all of the violations charged. On October 7, 2015, the court imposed a $250 fine for each count, for a total of $2,250. Counsel asked the court what statute the court was relying on in imposing the sentence. The court stated that Executive Law § 382(1) addresses violations, while Executive Law § 382(2) addresses misdemeanors.
On appeal, defendant contends, among other things, that the factual portion of the information was jurisdictionally defective because it did not allege that defendant had been previously served with an order, pursuant to Executive Law § 382(2), to remedy any condition found to exist in, on or about any building. Moreover, the Justice Court incorrectly determined that Executive Law § 382(1) authorizes the charging of violations of the Code. The People respond that defendant was properly charged with violations in accordance with Executive Law § 382(1), which does not require the issuance or service of a notice to remedy.
Executive Law § 382 sets forth the "remedies" for violation of the Code. Executive Law § 382(1) states that:
"In addition to and not in limitation of any power otherwise granted by law, every local government and its authorized agents shall have the power to order in writing the remedying of any condition found to exist in, on or about any building in violation of the uniform fire prevention and building code and to issue appearance tickets for violations of the uniform code."
Executive Law § 382(2) states, in pertinent part, that:
"Any person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the uniform fire prevention and building code, who shall fail to comply with such order within the time fixed by the regulations ... and any owner, builder, architect, tenant, contractor, subcontractor,
construction superintendent or their agents or any other person taking part or assisting in the construction of any building who shall knowingly violate any of the applicable provisions of the uniform code ... regarding standards for construction, maintenance or fire protection shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both."
Executive Law § 382(1) contains no provision authorizing the imposition of a fine or a jail sentence. Executive Law § 382(2) provides that a violation of the Code constitutes a misdemeanor, punishable by a fine not exceeding $1,000 or a term of imprisonment not exceeding one year. A person may be guilty of a misdemeanor pursuant to Executive Law § 382(2) if he or she was served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the Code, and fails to comply with such order. Proper service of an order to remedy is an element of the crime. A person may also be guilty of a misdemeanor under Executive Law § 382(2) if he or she is an owner, builder, architect, tenant, contractor, subcontractor, construction superintendent or their agents "or any other person" (emphasis added) who takes part or assists in the construction of any building, and who knowingly violates any of the applicable provisions of the Code or any lawful order of a local government regarding standards for construction, maintenance, or fire protection equipment and systems. Thus, to be guilty of a misdemeanor under Executive Law § 382(2), a person must either not comply with an order to remedy, or must be one of the enumerated persons who committed a violation of the Code in conjunction with the construction of a building (see People v. Plateau Assoc. , LLC , 46 Misc.3d 1, 6–7, 997 N.Y.S.2d 590 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2014] ; People v. Grimditch , 35 Misc.3d 268, 274, 936 N.Y.S.2d 527 [Essex County Ct. 2012] ; cf. Matter of Ophardt v. Vasquez , 74 A.D.3d 1742, 1744, 904 N.Y.S.2d 835 [2010] ). Thus, the Justice Court incorrectly determined that defendant could be charged with violations of the Code under Executive Law § 382(1), and we reject the People's argument that defendant could be so charged. As the information in this case did not allege that defendant had been served with a notice to remedy, or that any of the violations had been committed in conjunction with the construction of a building, it is jurisdictionally defective, and must be dismissed.
Following the imposition of sentence in this case, the Village of Laurel Hollow, on December 9, 2015, enacted a local law authorizing a fine of not less than $250 and not exceeding $1,500, or imprisonment of not more than 15 days, or both, for violating the New York State Building Construction Code (see Village of Laurel Hollow Code § 23–6).
In light our determination, we do not reach defendant's remaining contentions. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
GARGUILO, J.P., TOLBERT and RUDERMAN, JJ., concur.