People v. Vanderveer (Donald)

People v Vanderveer (2021 NY Slip Op 50356(U)) [*1] People v Vanderveer (Donald) 2021 NY Slip Op 50356(U) [71 Misc 3d 133(A)] Decided on April 22, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on April 22, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ 2016-256 S CR The People of the State of New York, Respondent, against Donald Vanderveer, Appellant. Patricia Weiss, for appellant. East Hampton Town Attorney's Office (NancyLynn Thiele of counsel), for respondent. Appeal from seven judgments of the Justice Court of the Town of East Hampton, Suffolk County (Steven Tekulsky, J.), rendered November 30, 2015. The judgments convicted defendant, upon jury verdicts, of three charges of violating East Hampton Town Code § 102-7 (A) (1), three charges of violating East Hampton Town Code § 102-14 (A), and one charge of violating East Hampton Town Code § 102-14 (C), respectively, and imposed sentences. ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted. Insofar as is relevant to this appeal, following a jury trial, defendant was convicted of three charges of not having a building permit for three truck bodies (truck body nos. 1, 2 and 3) in violation of East Hampton Town Code (Code) § 102-7 (A) (1), three charges of not having a certificate of occupancy for the aforementioned three truck bodies in violation of Code § 102-14 (A), and one charge of change in use in violation of Code § 102-14 (C), respectively. At the trial, the theory of the People's case was that defendant was illegally using his property for commercial landscaping purposes which constituted a change in use from residential to commercial, and that defendant had three truck bodies on the property for which no building permits or certificates of occupancy had been obtained. The owners of property abutting defendant's property testified that they had purchased their property in 1986 and did not begin to see the commercial use of defendant's property until 2014. A Town of East Hampton ordinance enforcement officer testified that, to constitute a pre-existing condition, any warehousing and storage on the property had to have continuously occurred since before 1957. Defendant testified that his mother owned the property, that she died in 1984, that he was her sole heir and was [*2]appointed executor of her estate, and that he had yet to probate her will. Defendant also stated that, starting in 1949, his property has always been used for the warehousing and storage of commercial goods, has never been used for commercial landscaping, and the warehousing and storage has been continuous up until the time of the trial. Defendant's witnesses provided testimony regarding the use of defendant's property for warehousing or storage from the 1960s to the present. Defendant contends on appeal, among other things, that the accusatory instruments were facially insufficient. In order for an information to be facially sufficient, it, and/or any supporting depositions accompanying it, must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 NY3d 259, 261-263 [2007]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]). The failure to meet the above requirements is jurisdictional and can be asserted at any time (see People v Casey, 95 NY2d at 363; People v Alejandro, 70 NY2d at 135), with the exception of hearsay which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d at 364-365). An "information that is facially insufficient is jurisdictionally defective and must be dismissed" (People v Sumter, 151 AD3d 556, 557 [2017]; see also People v Jones, 9 NY3d at 263). With respect to the building permit charges, Code § 102-7 (A) (1) provides that, "[w]ithout having first obtained a building permit[,] . . . no person . . . shall . . . [c]ommence, cause or continue the erection, construction, enlargement, removal, improvement, transportation or demolition of any building or structure, or any portion thereof, unless a particular provision of the Code explicitly exempts the particular action from the need for a building permit." With respect to the certificate of occupancy charges, Code § 102-14 (A) provides that "[n]o building or structure hereafter erected shall be used or occupied" in whole or in part until a certificate of occupancy shall have been issued by the building inspector. Code § 255-1-20 defines a building as a "structure with a roof supported by columns, posts or walls" and provides that "[e]very building is also a structure." That Code section further defines a structure as "[a]nything including any building which is constructed or erected on or under the ground or the water or upon another structure or building, including driveways, walkways, decks, patios . . . parking areas. . . fences, walls, berms, tennis courts, swimming pools, sewage disposal or drainage devices, bulkheads, jetties, docks, piers and any other improvement, fabrication, impervious surface or other construction, whether or not intended to be temporary, seasonal or permanent." The relevant factual portions of the informations charging defendant with violating Code § 102-7 (A) (1) and Code § 102-14 (A), respectively, state that defendant, "as person in control" of the property in question, violated Code § 102-7 (A) (1) "by failing to obtain a building permit for a truck body" (as to truck body nos. 1, 2 and 3), and violated Code § 102-14 (A) "by failing to obtain a certificate of occupancy for a truck body" (as to truck body nos. 1, 2 and 3). The foregoing allegations do not allege facts of an evidentiary nature which establish that a truck body is a building or structure within the meaning of the Code (see Code § 255-1-20; People v Lepper, 66 Misc 3d 133[A], 2019 NY Slip Op 52117[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Moreover, with respect to Code § 102-7 (A) (1), the informations also fail to allege facts of an evidentiary nature which establish that defendant "[c]ommence[d], cause[d] or [*3]continue[d] the erection, construction, enlargement, removal, improvement, transportation or demolition of any building or structure" (see e.g. People v Lepper, 66 Misc 3d 133[A], 2019 NY Slip Op 52117[U]; People v Baumgarten, 37 Misc 3d 131[A], 2012 NY Slip Op 51980[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). In addition, the informations charging defendant with violating Code § 102-14 (A) fail to allege facts of an evidentiary nature which establish that the truck bodies were "hereafter erected" and were being "used or occupied" (see e.g. People v Lepper, 66 Misc 3d 133[A], 2019 NY Slip Op 52117[U]; People v Pitti, 63 Misc 3d 164[A], 2019 NY Slip Op 50935[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Cusack, 34 Misc 3d 151[A], 2012 NY Slip Op 50299[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Consequently, as the respective informations do not establish every element of violations of Code §§ 102-7 (A) (1) and 102-14 (A) as required by CPL 100.15 (3) and 100.40 (1) (c) (see People v Jones, 9 NY3d at 261-263; People v Casey, 95 NY2d 354), they are jurisdictionally defective and they must be dismissed (see People v Jones, 9 NY3d at 263; People v Sumter, 151 AD3d at 557). With respect to the information charging a change in use, Code § 102-14 (C) provides that no change shall be made in the use or type of occupancy "of an existing building or structure" unless a certificate of occupancy authorizing such change shall have been issued by the building inspector. The relevant factual portion of this information states that defendant, "as person in control" of the property in question located in a residential district, did, from September 3, 2014 to the present, "change the use of the property to a commercial use by having the property used by a landscaping company and storage of commercial equipment, wood, scrap metal, tractor trailers, truck bodies . . . and assorted other equipment, all without building permits or certificate of occupancy." The foregoing allegations do not allege that an "existing building or structure" had been changed in the use or type of occupancy. Consequently, as this information fails to establish every element of a violation of Code § 102-14 (C) as required by CPL 100.15 (3) and 100.40 (1) (c) (see People v Jones, 9 NY3d at 261-263; People v Casey, 95 NY2d 354), it is jurisdictionally defective and it too must be dismissed (see People v Jones, 9 NY3d at 263; People v Sumter, 151 AD3d at 557). We pass on no other issue. Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed. GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 22, 2021