Posted by: Patricia Salkin | April 30, 2017

NY Appellate Term Reverses Conviction of Defendant for Violating the Certificate-of-Occupancy, Change-of-Occupancy-or-Use, and Permitted-Uses Zoning Provisions

This criminal action was brought based upon defendant’s alleged violations of the Code of the Village of Pelham Manor by having changed the use and occupancy of a “carriage house” located at 50 Shore Road, Pelham Manor, New York without obtaining a “permit” and without obtaining a certificate of occupancy, and by using/occupying the premises for a purpose other than an accessory and/or special accessory building. The factual allegations set forth in the “information” and “supporting deposition” to support the charges were merely that Steven H. Ruhs and/or Jill M. Ferrara had been residing in the “carriage house.” After the matter had been transferred to the City Court of New Rochelle, the People moved for “summary judgment,” which the City Court granted.

As a preliminary matter, the court noted that the three counts contained in the “information” were “deemed misdemeanors”, and there was therefore no authority for a criminal court to render a judgment of conviction pursuant to a pretrial motion for summary judgment as the CPLR is inapplicable to criminal proceedings and the Criminal Procedure Law does not include a provision for accelerated judgment such as is available to civil litigants pursuant to CPLR 3212.

Notwithstanding this issue, the court found that upon a review of the accusatory instrument, the counts charged therein were required to be dismissed on the ground that the instrument was jurisdictionally defective. Here, the factual allegations that Ruhs and Ferrara had been residing in the “carriage house” were conclusory, rather than evidentiary, and the instrument’s allegations did not establish the elements of the offenses charged. Accordingly, the judgment of conviction was reversed and the accusatory instrument was dismissed.

People v Cullen, 2017 WL 1822113 (NY Sup. Ct. App. Term 2d Dept. 4/27/017)

 


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