People v Kass (2008 NY Slip Op 51431(U))

People v Kass (Sharon)

2008 NY Slip Op 51431(U) [20 Misc 3d 131(A)]

Decided on July 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Sharon Kass, Appellant.

Appeal from (1) a "decision and order" of the Justice Court of the Town of Clarkstown, Rockland County (Scott B. Ugell, J.), rendered October 24, 2006 and (2) judgments of conviction of the same court (Scott B. Ugell, J.), entered December 7, 2006. The "decision and order" denied defendant's motion for dismissal of the accusatory instruments. The judgments convicted defendant, upon her pleas of guilty, of seven charges of violating Clarkstown Town Code section 125-4 (B).

Judgments of conviction reversed on the law, accusatory instruments dismissed, and fines, if paid, remitted.

The appeal from the "decision and order" denying defendant's motion for dismissal must be dismissed, as such appeal is not authorized by the Criminal Procedure Law (see CPL 450.10, 450.15).

The informations charge defendant with violating Clarkstown Town Code § 125-4 (B), which provides:
"It shall be unlawful for any owner of any dog in the Town to permit or allow such dog to : . . . Engage in habitual loud . . . barking . . . or to conduct itself in such a manner so as to unreasonably and habitually disturb the comfort or repose of any person other than the owner of such dog."
The informations are facially insufficient because their factual allegations fail to establish, if true, every element of the offense charged (see CPL 100.40 [1] [c]; 100.15 [3]). Specifically, each information alleges that the dogs engaged in an isolated episode of barking; none contains factual allegations to the effect that the dogs engaged in conduct that was habitual. Moreover, [*2]since none of the informations specifically incorporates by reference any of the other informations, the defect in any one of the informations cannot be cured by the mere existence of, or by the factual allegations contained in, any of the others (see People v Casey, 95 NY2d 354 [2000]; People v Grabinski, 189 Misc 2d 307, 308 [App Term, 9th & 10th Jud Dists 2001]). The defects in the informations are jurisdictional and nonwaivable, and the informations
must therefore be dismissed (see People v Konieczny, 2 NY3d 569, 573 [2004]; People v Alejandro, 70 NY2d 133 [1987]). In view of our disposition, we do not address any other issues.