Opinion
No. BRTO1821–16.
07-21-2017
PEOPLE of the State of New York v. SIEGER AGENCY INC., Defendant.
Upon the following papers numbered 1 to 5 read on this motion by defendant for omnibus relief by Notice of Motion/Order to Show Cause and supporting papers 1–3; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 4; Replying Affidavits and supporting papers 5; Filed papers; Other;(and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that the pre-trial motion by defendant for omnibus relief, is decided as follows:
The defendant is charged with violating § 85–12A of the Brookhaven Town Code, Broker's/Agent's Responsibility Prior to Listing, a Violation, on July 15, 2016, for premises located at 19 Wylde Road, Mt. Sinai, Town of Brookhaven, County of Suffolk, State of New York 11766 ("Premises"): wherein it shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York for any broker or agent to list, solicit, advertise, exhibit, show or otherwise offer for lease, rent, or sale on behalf of the owner, any dwelling unit for which a current rental permit has not been issued by the Chief Building Inspector. It shall be the broker's or agent's duty to verify the existence of a valid rental registration before acting on behalf of the owner.
I. DISMISSAL FOR VIOLATING CONSTITUTIONAL GUARANTEE OF FREE SPEECH:
The defendant seeks dismissal of the pending accusatory instrument on the ground that the charging statute violates the free speech clauses of the State and Federal Constitutions as a prior restraint upon speech, and is unconstitutional. Defendant states the accusatory instrument asserts that placement of defendant's "For Rent" broker's sign on property where a current rental permit was not issued by the Town is prohibited by § 85–12A of the Brookhaven Town Code. Defendant contends it has a first amendment, constitutionally protected right to place its "For Rent" Broker's sign on the owner's property and the charge should be dismissed as a result.
In opposition, the People assert that the Town may enact reasonable regulations governing the dissemination of commercial activity, where a legitimate government interest is involved. The People contend the Town's implementation of the requirement of rental permits serves a larger purpose of protecting various health, safety and well-being concerns of persons renting homes, such as issues of overcrowding, substandard housing, and violations of State and Town Codes. Therefore, the People argue that any restraint on speech which may exist in the factual part of the instant charge under § 85–12A, is reasonable, as it is in furtherance of the Town's stated purpose of requiring rental permits as a method of protecting the health, safety and well-being concerns of persons renting homes.
Here, the Court finds that § 85–12A of the Brookhaven Town Code is not an unreasonable restraint of speech prohibited under the State and Federal Constitutions. It is well settled that ordinances are given an "exceedingly strong presumption of constitutionality" (see New York Charter Schools Association, Inc. v. DiNapoli, 13 NY3d 120, 130 [2009] ; Town of Islip v. Caviglia, 73 N.Y.2d 544, 551 [1989] ; Bobka v. Town of Huntington, 143 A.D.2d 381, 383 [2nd Dept 1988] ). A defendant is required to rebut this strong presumption beyond a reasonable doubt and only as a last resort should a court strike down an ordinance on the ground of being unconstitutional (see Town of North Hempstead v. Exxon Corp., 53 N.Y.2d 747, 749 [1981] ; Lighthouse Shores, Inc. v. Town of Islip, 41 N.Y.2d 7, 11 [1976] ).
The Court determines that the defendant has failed to rebut, beyond a reasonable doubt, the strong presumption of the constitutionality of the pending charge of the Brookhaven Town Code. Accordingly, defendant's motion to dismiss on this basis, is denied.
The Court further finds § 85–12A serves a larger governmental purpose of protecting various health, safety and well-being concerns of persons renting homes, to prevent owners from profiting from rental properties which are overcrowded, substandard and in violation of Town and State Codes (see Ader v. Guzman, 135 AD3d 671 [2nd Dept 2016] ). The language of the statute is such that it is content neutral and narrowly tailored to meet this governmental interest, yet leaves ample alternatives for communication and expression (see Sorrell v. IMS Health, Inc., 564 U.S. 552 [2011] ; Clark v. Community for Creative Non–Violence, 468 U.S. 288 [1984] ). The statute has not been implemented because of disagreement with the message it conveys (see Ward v. Rock Against Racism, 491 U.S. 781, 791 [1989] ). Indeed, the "For Rent" Broker's sign in question is permissible, in this context, if the broker/agent has verified the existence of a valid rental permit. Moreover, the regulation is narrowly tailored to all brokers/agents, as they are the only members of a specifically regulated class of licensed realtors, who can legally offer for lease, rent, or sale property on behalf of an owner, provided they have fulfilled their governmentally imposed duty to verify the existence of a rental permit. Therefore, the Court finds the statute directly advances a substantial governmental interest and is a reasonable regulation governing the dissemination of commercial activity. Accordingly, defendant's motion to dismiss on this basis, is also denied.
II. DISMISSAL FOR INSUFFICIENT ACCUSATORY INSTRUMENT:
The portion of the pre-trial motion by defendant seeking to dismiss the pending accusatory instrument charging a violation of § 85–12A of the Brookhaven Town Code, as being jurisdictionally defective within the meaning of CPL §§ 100.40(1), 100.15, 170.30(1), and 170.35[1][c] ), on the grounds the charge is insufficient as a matter of law, is denied.
Pursuant to CPL § 100.40(1)(a), every accusatory information must conform to the requirements of CPL § 100.15. To be sufficient, an information must contain factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed the offense charged (see CPL § 100.15 [3 ] and CPL § 100.40[1][b] ; People v. Jones, 9 NY3d 259 [2007] ; People v. Casey, 95 N.Y.2d 354 [2000] ). The factual portion of the information must be supported by non-hearsay allegations which, if true, establish every element of the offense charged (see CPL § 100.40[1][c] ). An information which fails to satisfy these requirements is jurisdictionally defective (see CPL § 170.30 and CPL § 170.35 ; People v. Kalin, 12 NY3d 225 [2009] ; People v. Alejandro, 70 N.Y.2d 133 [1987] ). In effect, an information must demonstrate the existence of a prima facie case against the defendant (see People v. Clinkscales, 3 Misc.3d 333 [NY Dist Ct 2004] ).
In reviewing the sufficiency of an information, the Court should view the allegations in the accusatory instrument and any supporting depositions in a light most favorable to the People (see People v. Martz, 28 Misc.3d 1215 [A][NY Dist Ct 2010] ), but should not give an overly restrictive or technical reading to the instrument (see People v. Baumann & Sons Buses, Inc., 6 NY3d 404 [2006] ).
However, not every deficiency based upon an irregularity in the accusatory instrument implicates the jurisdiction of the court (see People v. Konieczny, 2 NY3d 569, 575 [2004] ). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (see People v. Casey, supra, at 360; see also People v. Dreyden, 15 NY3d 100 [2010] ).Nonetheless, Casey"did not dilute the statutory requirement that the allegations of the factual part of the information, and/or any supporting depositions, establish, if true, every element of the offenses charged and the defendant's commission thereof" (see People v. Cobb, 2 Misc.3d 237, 240 [NY Crim Ct 2003], citing People v. Singh, 1 Misc.3d 73 [App. Term, 2nd Dept 2003] ; CPL § 100.40[1] ).
In the instant matter, the accusatory information alleges the charge is based upon the sworn personal knowledge of William Schott, a Building Inspector for the Town of Brookhaven, containing factual allegations of an evidentiary character supporting or tending to support the charge (see CPL § 100.15 [3 ] ). The phrase "factual allegations" means non-conclusory descriptions of what the deponent personally observed, heard or experienced (see People v. Dumas, 68 N.Y.2d 729 [1986] ). It must "indicate that the allegations made are based on the personal knowledge of the subscriber and that the subscriber has read the allegations contained in the document and verifies that they are true" (see People v. Stridiron, 176 Misc.2d 16, 17 [NY Crim Ct, Queens Co 1997] ).
Moreover, since the duties of a Building Inspector for the Town of Brookhaven, as complainant, require the searching of Town or other public records, "it is clear from the factual allegations of the information that the town [inspector] had personal knowledge of the contents of the records he had searched ..." (see People v. M. Santulli, LLC., 29 Misc.3d 54, 57 [App Term, 9th & 10th Jud Dists 2010] ), which fairly imply personal knowledge as to the element of ownership of the subject premises contained in the information (see People v. White, 31 Misc.3d 139[A] [App Term 9th & 10th Jud Dists 2011; People v. Fischer, 6 Misc.3d 135[A] [App Term, 9th & 10th Jud Dists 2005] ; People v. Caravousanos, 2 Misc.3d 7, 8 [App Term, 9th & 10th Jud Dists 2003). Rather, "the source or validity of [his] knowledge is a matter to be raised as an evidentiary defense at trial and need not be raised in the information" People v. White, supra at *2, quoting People v. Casey, 95 N.Y.2d 354, 360 [2000] ; People v. Hall, 4 Misc.3d 60 [App Term, 9th & 10th Jud Dists 2004] ; People v. Sikorski, 195 Misc.2d 534, 536 [App Term, 2nd Dept 2002] ).
Here, a reading of the full accusatory instrument in a light most favorable to the People (see People v. Martz, supra), establishes, if true, every element of the offense charged and the defendant's commission thereof" (see People v. Cobb, supra; People v. Singh, supra; CPL § 100.40[1] ). It contains factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed the offense charged (see People v. Casey, supra; CPL § 100.15[3] and CPL § 100.40[1][b] ).
The Court determines that the factual circumstances in the information demonstrate the existence of a prima facie case against the defendant (see People v. Clinkscales supra). The factual allegations are sufficiently detailed so that defendant may prepare a defense, and establish what defendant is being charged with, so that defendant is protected against future prosecution for the same offense (see People v. Dreyden, supra; People v. M. Santulli, LLC., supra; People v. Fischer, supra). Therefore, the Court determines the accusatory information is not facially insufficient on the grounds asserted by defendant. Accordingly, defendant's motion to dismiss on this ground is denied.
III. SECTION 85.12A IS PREEMPTED BY STATE LAW:
The part of defendant's motion which seeks dismissal of the charge on the ground that § 85–12A of the Brookhaven Town Code is preempted by New York State Law, is denied.
Defendant contends that the State of New York has indicated its preemption of the regulation of real estate brokers and agents in the context of renting dwelling units, by requiring certain licensing provisions under Real Property Law ("RPL") § 12–A, § 440–a and § 441(1) & (2). Therefore, defendant asserts the further regulation of brokers/agents by § 85–12A of the Brookhaven Town Code, is prohibited under the preemption doctrine, and requires dismissal.
The People oppose this position and assert that § 85–12A of the Brookhaven Town Code regulates the advertising of rental properties within the Town, not the regulation of brokers/agents, and is not preempted by § 12–A, § 440–a or § 441(1) & (2) of the RPL.
The Court finds that § 85–12A of the Brookhaven Town Code has not been preempted by New York State Law. The Town statute is a regulation governing the use of land and solicitation of that rental use pursuant to § 261 of Chapter 62, Article 16 of the Town Law, and does not intrude upon or regulate the licensing of brokers/agents, which is within the exclusive domain of New York State.
Accordingly, defendant's motion to dismiss on this ground is denied.
IV. DISMISSAL FOR LACK OF JURISDICTION:
The part of defendant's motion which seeks dismissal upon the ground the Court lacks subject matter jurisdiction, is denied.
It appears from defendant's papers that defendant takes the position that only a criminal information is the proper accusatory instrument to commence the Violation charge before the Court, and the instrument before the Court is insufficient in this regard, to the extent that it deprives the Court of subject matter jurisdiction.
The People oppose defendant's stance and assert that the Court has proper subject matter jurisdiction, as the accusatory instrument was filed with the Court pursuant to CPL § 100.05, and is proper.
The Court has reviewed the Violation information and finds it to be sufficient, thereby providing the necessary subject matter jurisdiction. The instrument was subscribed to and verified by the complainant, Town Building Inspector William Schott. The factual allegations were sworn and based upon his personal knowledge (see CPL § 100.15[1] ). However, the allegations must be tested and resolved at a trial and not by pre-trial motion (see People v. Prunty, 101 Misc.2d 163, 168 [Crim Ct of the City of New York [1998] ).
Accordingly, defendant's motion to dismiss on this basis is denied.
V. THE LACK OF A MENS REA REQUIRES DISMISSAL:
The part of defendant's motion which seeks dismissal on the ground that no factual culpable state of mind (mens rea) is alleged or demonstrated in the accusatory information, is denied.
The Court finds that § 85–12A of the Brookhaven Town Code is a regulatory statute enacted under the zoning authority of the Town, as being rooted in promoting the public health, safety, morals and general welfare of the community (see Trustees of Union College in the Town of Schenectady v. Members of Schenectady City Council, 91 N.Y.2d 161 [1997] ; McKinneys Constitution of the State of New York, Art. 9, § 2 ; Gen. Municipal Law § 119–aa). Giving effect to the plain meaning of a reading of the statute, shows that the legislature did not intend that mens rea be an element of § 85–12A (see Majewski v. Broadalbin–Perth Central School District, 91 N.Y.2d 577, 583 [1998] ).
As such, the statute imposes strict liability for specifically stated physical acts (designated as the Actus Reus), for it to be unlawful (see People v. Farmer, 113 Misc.2d 85 [NY City Ct.1980] ). Here, the statute lists the voluntary acts "for any broker or agent to list, solicit, advertise, exhibit, show or otherwise offer for lease, rent, or sale on behalf of the owner, any dwelling unit ..." This coupled with the absence of a current rental permit, establishes the overt acts or specific omissions to act, for the named offense, as the Actus Reus is always necessary. It does not require an intentional or negligent mens rea(see People v. Farmer, supra at 87, citing People v. Shaughnessy, 66 Misc.2d 19, 20 [Dist Ct Nassau Cty 1971] ).
Moreover, § 85–12A imposes a duty, in that "It shall be the broker's or agent's duty to verify the existence of a valid rental registration before acting on behalf of the owner." The Court finds that this imposed duty by the Town follows its compelling interest in seeing that the public was protected through enforcement of building and maintenance codes (see People v. Greentree Servicing LLC., 52 Misc.3d 332 [NY City Ct.2016] ). The statute prevents owners from profiting from rental properties which are overcrowded, substandard and in violation of Town and State Codes (see Ader v. Guzman, supra), by requiring rental permits issued by the Chief Building Inspector after inspection. Accordingly, for the foregoing reasons, defendant's motion to dismiss on this ground, is denied.
VI. DISMISSAL FOR LACK OF STATING FACTUAL ALLEGATIONS OF A VOLUNTARY ACT:
The part of defendant's motion seeking dismissal on the ground that the accusatory information lacks factual allegations of a voluntary act, is denied.
Defendant asserts that if § 85–12A is construed as a strict liability statute, there must be allegations which show a voluntary act, for there is no criminal liability for an act that is involuntary.
The People oppose defendant's position and assert that the alleged facts in the accusatory instrument show there is reasonable belief that defendant knew about placement of the realtor's "For Rent" sign and undertook actions or omissions which constitute a voluntary act. The People contend the accusatory instrument is sufficient and the issue of a voluntary act is a question of fact for later determination at trial.
The Court has previously determined that the Violation information is legally sufficient. In order to establish criminal responsibility, there must be either an overt act or a failure to act, as involuntary acts cannot sustain a conviction (see People v.. Shaughnessy, supra at 20). However, whether the overt acts or specific omissions to act, were voluntary or not, is a question of fact for determination at trial.
Accordingly, defendant's motion to dismiss on this basis, is denied.
VII. BRADY MATERIAL:
The People are reminded of their continuing obligations under Brady(Brady v. Maryland, 373 U.S. 83 [1963] ), to provide to defendant any and all exculpatory material if and when such material becomes known to the People, and is in their possession.
VIII. ROSARIO MATERIAL:
The People are reminded that all information concerning witnesses which the People intend to call at trial shall be made available to defendant pursuant to CPL § 240.44 and CPL § 240.45 (see People v. Rosario, 9 N.Y.2d 286 [1961] ).
IX. SANDOVAL/MOLINEUX/VENTIMIGLIA:
The Court deems defendant's papers to be a request for a Sandoval/Molineux/Ventimiglia hearing, which is hereby granted. The hearing shall be held prior to trial to determine the admissibility of any previous convictions or bad acts of the defendant, which the People seek to use at trial for impeachment purposes (see People v. Sandoval, 43 N.Y.2d 371 [1974]; CPL § 240.43 ), or prior charged or uncharged criminal, vicious, or immoral conduct which the People seek to use on their direct case to prove common scheme or plan, intent, modus operandi, or identification (see People v. Molineux, 168 N.Y. 262 [1901] ; People v. Ventimiglia, 52 N.Y.2d 350 [1981] ).
The People shall notify defendant immediately prior to the hearing as to any specific instances of defendant's previous convictions or bad acts or prior uncharged, criminal, vicious or immoral conduct which the People intend to use at trial.
X. ANY HEARINGS TO BE 20 DAYS IN ADVANCE OF TRIAL:
The defendant requests that any hearing ordered by the Court, with the exception of a Sandoval hearing, be held at least 20 days prior to commencement of trial, in order to allow defendant sufficient time for transcription of the minutes of such hearing, citing People v. Sanders, 31 N.Y.2d 463 [1973] ). The Court finds there are no unusual circumstances here presented which would require the Court, at this time, to mandate that any hearing held in this matter be held no less than 20 days before trial. Defendant shall request a copy of a hearing transcript, if needed, prior to the conclusion of any hearing, and defendant shall be afforded a reasonable time and opportunity to obtain the transcript. In all other respects, defendant's request is denied.
XI. NO CPL § 710.30 STATEMENT WAS PROVIDED TO DEFENDANT:
Defendant asserts that the People failed to provide any CPL § 710.30 Notice of Statements made by defendant to law enforcement officials. The People have not answered this assertion by defendant. Though the Court is aware that it is the usual practice of the People to serve upon a defendant a § 710.30 Notice at arraignment, it is unclear as to whether this, in fact occurred, in this instance. In light of the unopposed position by the People, defendant's request for preclusion at trial of any statements made by defendant to any law enforcement officials, is granted.
XII. FURTHER MOTIONS:
The defendant's request for the right to submit additional motions, if warranted, is denied to the extent that any additional motions brought before this Court shall be considered under the provisions of CPL § 255.20 at the time of submission.
The Court has examined any remaining contentions advanced by defendant and find them to be without merit.
The foregoing constitutes the decision and order of this Court.