People v Rollano (2014 NY Slip Op 50182(U))

People v Rollano (Juan)

2014 NY Slip Op 50182(U) [42 Misc 3d 140(A)]

Decided on January 31, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

The People of the State of New York, Respondent,

against

Juan Rollano, Appellant.

Appeal from a judgment of the Justice Court of the Village of Haverstraw, Rockland County (Ronald De Caprio, J.), rendered July 19, 2012. The judgment convicted defendant, after a nonjury trial, of violating Village of Haverstraw Code § 137-4.

ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

The accusatory instrument charged defendant with violating Village of Haverstraw Code § 137-4. After a nonjury trial, the Justice Court found defendant guilty and imposed a fine of $15,000. On appeal, defendant argues, among other things, that the accusatory instrument was jurisdictionally defective. We note at the outset that jurisdictional defects in an information are nonwaivable and may be raised for the first time on appeal (see People v Casey, 95 NY2d 354 [2000]).

The accusatory part of the information charged defendant with having violated Village of Haverstraw Code § 137-4, a section of the code that merely sets forth the penalties for violating, among other things, any other provision of article I of chapter 137 of the Village of Haverstraw Code, without directing or proscribing any particular behavior. The information also states that defendant failed to comply with a written order from a building inspector after having violated Village of Haverstraw Code § 137-2 (1), but fails to identify or describe such an order. Moreover, there is no section 137-2 (1) of the Village of Haverstraw Code.

The factual part of the information merely alleges that defendant was "in violation of [his] C.O.," and that "[t]his is a one family dwelling and is being used as a rooming house." These statements are conclusory and not evidentiary (see People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010] People v Curiale, 20 Misc 3d 133[A], 2008 NY Slip Op 51465[U] [App Term, 9th & 10th Jud Dists 2008]). Consequently, the factual part of the information does not "advise[] defendant of the facts relied upon to constitute the alleged violation" (People v Norman, 1 Misc 3d 127[A], 2003 NY Slip Op 51537[U], *1 [App Term, 9th & 10th Jud Dists 2003]).

Under all of the circumstances presented, we find that the information is jurisdictionally defective (see CPL 100.15 [2], [3] 100.40 [1]). Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine, if paid, is remitted.