Defendant moves for an order dismissing the accusatory instrument. Although defendant does not specify the section of the Criminal Procedure Law applicable to his motion to dismiss, this court will treat his motion as one that is based on the theory that the accusatory instrument is jurisdictionally defective because it is facially insufficient (see CPL 170.30 [1] [a]). The People filed an opposition to the motion; and the defendant filed a reply dated February 4, 2010.

On November 26, 2008, "Trump Village Sec 1" was served with Fire Commissioner violation order number E 158159. The order alleged that the premises failed to provide sprinkler protection to cover at least 5 feet on all sides of the drying machines in the laundry area, in violation of Building Code 903.2.10.6. The Fire Commissioner's violation order warned that if the violation were not corrected within 30 days, a summons would be served.

On April 28, 2009, defendant Peter Lepore was served with a summons. A supporting deposition was filed with the court identifying Mr. Lepore as the building manager of 2940 Ocean Parkway, Brooklyn, NY 11235.^[FN1] The summons charges defendant with New York City Administrative Code § 15-223.1 "Subd A + B," alleging that defendant failed to comply with Fire Commissioner violation order number E 158159 by failing "to provide sprinkler protection to cover at least 5 ' on all sides of drying machines in laundry area."

Section BC 903.2.10.6 of Title 28 of the New York City Administrative Code, Chapter 7, Article 701, Chapter 9, provides: "An automatic sprinkler system shall be installed in spaces in which two or more clothes drying machines are installed. Sprinkler heads shall be spaced to cover [*2]the areas 5 feet (1524 mm) on all sides of the drying machines."

Defendant contends that Section BC 903.2.10.6 does not apply to the building identified in the summons because a sprinkler system was not mandated when it was built, and Section BC 903.2.10.6 does not specify that it applies to buildings in existence when the requirement was adopted. Defendant has submitted a copy of a certificate of occupancy indicating that the building existed in 1964, prior to the enactment of Section BC 903.2.10.6. Defendant correctly argues that Section BC 903.2.10.6 does not have a retroactive requirement.^[FN2] Defendant further argues that Section BC 903.2.10.6 does not apply to the building in question because of New York City Administrative Code § 28-102.4, which allows the continued lawful use of an existing building unless a retroactive change is specifically required.^[FN3]

However, a change in use or occupancy (see New York City Administrative Code § 28-102.4.2), or an alteration of an existing structure (see New York City Administrative Code § 28-102.4.3), after Section BC 903.2.10.6 of the current code was enacted, could mandate that an existing building comply with new requirements, regardless of whether the new code section contains a retroactive clause. Such alteration, or change in use or occupancy, could result in the requirement that a building that lawfully existed in 1964, comply with rules enacted after a certificate of occupancy was issued.

When a defendant is charged in a misdemeanor complaint, unless he expressly waives prosecution by information and consents to be prosecuted by a misdemeanor complaint, the misdemeanor complaint must be replaced prior to trial with an information which meets the requirement for facial sufficiency (CPL 170.65 [1], [3]; 100.10 [4]; People v Kalin, 12 NY3d 225, 228 [2009]).

The information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case (People v Alejandro, 70 NY2d 133 [1987]). Furthermore, both informations and misdemeanor complaints must allege or be based on "reasonable cause to believe" that defendant committed the offense (People v Dumas, 68 NY2d 729 [1986]). " Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it..." (CPL 70.10 [2]). A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement (People v Kalin, 12 NY3d 225, 229 [2009]). [*3]

In this case, the issue of facial sufficiency depends on whether the accusatory instrument is required to contain allegations of fact such as the age of the building, an alteration, or a change in use or occupancy.

A "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt at trial" (People v Henderson, 92 NY2d at 680 [1999], cited by People v Kalin, 12 NY3d at 230 [2009]). If the informant's personal observations are accepted as true, then defendant is not in compliance with Section BC 903.2.10.6. The facial sufficiency of the information in this case depends on whether the retroactive requirement of the code is an "exception" that must be pleaded by the prosecution, or a "proviso" that need not be pleaded but may be raised by defendant as a defense at trial (see People v Santana, 7 NY3d 234 [2006], citing People v Rodriguez, 68 NY2d 674, 675 [1986], revg on dissenting op of Lazer, J., 113 AD2d 337, 343-348 [2nd Dept 1985]).

In People v Santana (7 NY3d 234 [2006]), the Court of Appeals applied a general rule that qualifying language found outside of the text of a relevant Penal Law statute is a "proviso," but the court's ultimate conclusion was premised on the belief that the Legislature could not reasonably have intended the People to negate in an information the existence of the myriad labor disputes that would render the contempt statute inapplicable (People v Davis, 13 NY3d 17, 31 [2009], citing People v Santana, 7 NY3d 234, 237 [2006]).

In People v Davis (13 NY3d 17 [2009]), defendant was convicted of violating a New York City Parks and Recreation Department rule that prohibits persons from being in city parks after their posted closing times. Although the rule contains the qualifying language stating that a person may disregard a park sign upon order by a police officer or designated Department employee, the information did not state that no police officer or designated Department employee allowed defendant to disregard the sign. The Court of Appeals held that "as a matter of common sense and reasonable pleading," the rule was not enacted with the intention of requiring the People to plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time (id. at 31-32). The Court of Appeals held that requiring the People to plead and negate the existence of permission would require them to go to intolerable lengths, including innumerable interviews of officers and employees in the area, serving no useful purpose of narrowing issues or giving notice. Instead, the qualifying language was held to be a "proviso" that must be pleaded and proved by the defendant (id., 32), rather than an "exception" that must be pleaded and proved by the People.

In the case at hand, the informant alleges that he personally observed that the laundry area contained drying machines without sprinklers mandated by Section BC 903.2.10.6, and in violation of the Fire Commissioner's order. The condition described by the informant affects the safety and welfare of the residents of the building. Although the Building Code provides that retroactive requirements are generally not mandated unless specified in the particular section of code in question, it would be unreasonable to require an informant to specify exceptions to the general rule, such as a change in use or occupancy (see New York City Administrative Code § 28-102.4.2), or that there has been an alteration of the existing structure (see New York City Administrative Code § 28-102.4.3) after the current code was enacted, but resulting in a requirement that the existing building comply with the new rules. [*4]

A law enforcement officer who observes an obvious offense is required to plead facts in the information establishing a prima facie case. However, it would be unreasonable to require sworn allegations concerning the absence of all possible defenses. Otherwise, to give an example of an absurd result, every information would be required to have sworn allegations of fact that the actions of an accused were not "emergency measures" justified by Penal Law § 35.05. Although the People may be required to address a defense such as "emergency" at trial (see People v Padgett, 60 NY2d 142 [1983] [in a prosecution for criminal mischief, defendant was entitled to have the emergency defense charged since he claimed that he damaged property to avoid being assaulted]), such a defense may only be discernable to the defendant. The prosecutor should not be required to prove the lack of defenses in an information when it concerns matters that are uniquely within a defendant's knowledge. Requiring law enforcement to go to unreasonable lengths, including searching records and interviewing witnesses concerning the age of the building, approved and unapproved alterations, or changes in use or occupancy, would not serve to narrow issues or give notice. Instead, such a requirement would delay the enforcement of a building code that affects the safety and welfare of the building's occupants (see People v Davis, 13 NY3d 17, 32 [2009], citing People v Santana, 7 NY3d 234 [2006]).

So long as the factual allegations of an information give defendant sufficient notice to prepare a defense, and are detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive reading (People v Kalin, 12 NY3d 225, 230 [2009], citing People v Konieczny, 2 NY3d 569, 575 [2004], and People v Casey, 95 NY2d at 360 [2000]). Defendant has been given sufficient notice that his building does not comply with the Building Code, and is in violation of the Fire Commissioner's order. The informant alleges that he personally observed the lack of a sprinkler system sufficient to cover at least five feet around drying machines in the laundry area. The allegations of fact in this case are specific enough to invoke the protection of double jeopardy in the event that defendant is acquitted of this charge but later subject to further prosecution.

This court holds that the restriction contained in New York City Administrative Code Title 28, prohibiting the retroactive application of the current Building Code to existing structures unless specified in the section of the code defendant is accused of violating, is a proviso. There is no requirement that an information plead a proviso.

Defendant's submission of a certificate of occupancy with his moving papers, indicating the completion of the building prior to the enactment of the current code, may serve to raise a defense at trial. However, the certificate of occupancy does not provide a basis for an order dismissing the information for a lack of facial sufficiency.

Accordingly, it is hereby:

ORDERED, that the defendant's motion for an order dismissing the information is denied.

This opinion shall constitute the decision and order of the court. [*5]

Dated: April 22, 2010

_________________________

Hon. George A. Grasso

Judge of the Criminal Court