[*1]
People v Needleman (Dorit)
2012 NY Slip Op 51118(U) [35 Misc 3d 149(A)]
Decided on June 13, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2011-289 RO CR.

The People of the State of New York, Respondent, —

against

Dorit Z. Needleman, Appellant.


Appeal from a judgment of the Justice Court of the Village of Wesley Hills, Rockland County (Philip G. Schnelwar, J.), rendered October 26, 2010. The judgment convicted defendant, after a nonjury trial, of parking in a "handicap zone."


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

The parking violation summons issued to defendant is the functional equivalent of an appearance ticket (see CPL 150.10, 150.20; People v Gabbay, 175 Misc 2d 421 [1997]; People v Devany, 24 Misc 3d 130[A], 2009 NY Slip Op 51345[U] [App Term, 9th & 10th Jud Dists 2009]). An appearance ticket is not an accusatory instrument and thus does not confer jurisdiction over the defendant (see People v Gabbay, 175 Misc 2d 421; People v Vaitzman, 31 Misc 3d 152[A], 2011 NY Slip Op 51134[U] [App Term, 9th & 10th Jud Dists 2011]; People v Devany, 24 Misc 3d 130[A], 2009 NY Slip Op 51345[U]; People v O'Shea, 2003 NY Slip Op 51102[U] [App Term, 9th & 10th Jud Dists 2003]). As it is clear from the record that the People did not file a proper accusatory instrument with the court (see CPL 150.50), the court never acquired jurisdiction over defendant and the action must be dismissed.

Even if we were to treat the parking violation summons as an information, its dismissal [*2]would nonetheless be mandated, as the instrument is facially insufficient (see People v Gabbay, 175 Misc 2d 421; People v O'Shea, 2003 NY Slip Op 51102[U]). While the summons indicates the date, time and location of the offense as well as identifying information about the vehicle, it characterizes the offense simply as parking in a "handicap zone." The Vehicle and Traffic Law sets forth two separate offenses, with different elements, that arguably fall under the offense characterized in the instrument as "handicap zone": parking in a handicapped parking space and parking in a handicapped parking access aisle (see Vehicle and Traffic Law § 1203-c [4]). To allege an offense of parking in a handicapped parking space, it must be shown that defendant parked a vehicle in a parking space,

"clearly marked for use by the handicapped in accordance with this section, without a special vehicle identification parking permit, a special municipal parking permit or whose motor vehicle is not registered in accordance with section four hundred four-a of this chapter and being used for the transportation of a handicapped person; or with such permit or registration and such person is not the one to whom the permit or registration was issued or is not transporting the person issued the permit or registration" (id.)

With respect to parking in a handicapped parking access aisle, it is illegal for anyone, including an authorized handicapped person, to park in such an aisle (see id.). The summons fails to state the offense with which defendant was charged with sufficient detail to enable defendant to know which of the two offenses she is being charged with (see People v McGuire, 5 NY2d 523, 525-526 [1959]; People v Love, 306 NY 18 [1953]; cf. People v Norman, 1 Misc 3d 127[A], 2003 NY Slip Op 51537[U] [App Term, 9th & 10th Jud Dists 2003]). Moreover, the bare, conclusory factual allegations failed to enable defendant to prepare a defense and were not sufficiently detailed to prevent her reprosecution for the same offense (see People v Dreyden, 15 NY3d 100 [2010]; People v Casey, 95 NY2d 354, 360 [2000]), thus rendering the instrument jurisdictionally defective (see People v Dumas, 68 NY2d 729 [1986]; People v South, 29 Misc 3d 92 [App Term, 9th & 10th Jud Dists 2010]).

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 13, 2012