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People v. Lubavitch of Old Westbury, Inc.

Supreme Court of New York, Appellate Division, Second Department
Dec 16, 2021
73 Misc. 3d 144 (N.Y. App. Term 2021)

Opinion

2020-615 N CR

12-16-2021

The PEOPLE of the State of New York, Respondent, v. LUBAVITCH OF OLD WESTBURY, INC., Appellant.

Harras Bloom & Archer LLP, (Linda S. Agnew of counsel), for appellant. Sahn Ward PLLC, (Jon A. Ward and Joseph Bjarnson of counsel), for respondent.


Harras Bloom & Archer LLP, (Linda S. Agnew of counsel), for appellant.

Sahn Ward PLLC, (Jon A. Ward and Joseph Bjarnson of counsel), for respondent.

PRESENT: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, HELEN VOUTSINAS, JJ.

ORDERED that the judgment of conviction is reversed, on the law, the fines, if paid, are remitted and the accusatory instrument is dismissed.

Insofar as relevant to this appeal, defendant was charged in an accusatory instrument with violating sections 216-89 (A), 216-89 (C), 216-90 (A) and 216-111.2 (A) of the Code of the Village of Old Westbury (hereinafter Code) based on the construction of a Mikvah.

A ritual bath for purification in accordance with Jewish law.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v Case , 42 NY2d 98, 99 [1977] ; see also People v Dumay , 23 NY3d 518, 522 [2014] ; People v Dreyden , 15 NY3d 100, 103 [2010] ). Here, since defendant did not waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern an information (see People v Hatton , 26 NY3d 364, 368 [2015] ; People v Kalin , 12 NY3d 225, 228 [2009] ; see also CPL 100.15, 100.40 [1] ).

An information is sufficient on its face when, among other things, allegations of the factual part of the information and/or any supporting depositions establish, if true, the defendant's commission of the offense charged (see CPL 100.40 [1] [c] ). A review of the accusatory instrument herein reveals that there is absolutely no allegation setting forth defendant's connection to the property in question or to the construction of the Mikvah in question. Thus as to each count, the accusatory instrument failed to establish defendant's commission of the particular offense charged (see CPL 100.40 [1] [c] ), or even to provide reasonable cause to believe that defendant committed the charged offenses (see CPL 100.40 [1] [b] ). Indeed, as to count one, this is particularly noteworthy because only the persons listed in Code § 216-89 (A) are capable of committing a violation thereof. Consequently, the accusatory instrument is jurisdictionally defective and must be dismissed (see People v Rozz , 66 Misc 3d 133[A], 2019 NY Slip Op 52116[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Taffet , 54 Misc 3d 21, 24-25 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

We reach no other issue.

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

RUDERMAN, P.J., and VOUTSINAS, J., concur.

GARGUILO, J., taking no part.


Summaries of

People v. Lubavitch of Old Westbury, Inc.

Supreme Court of New York, Appellate Division, Second Department
Dec 16, 2021
73 Misc. 3d 144 (N.Y. App. Term 2021)
Case details for

People v. Lubavitch of Old Westbury, Inc.

Case Details

Full title:The People of the State of New York, Respondent, v. Lubavitch of Old…

Court:Supreme Court of New York, Appellate Division, Second Department

Date published: Dec 16, 2021

Citations

73 Misc. 3d 144 (N.Y. App. Term 2021)
157 N.Y.S.3d 327