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People v. Esplanade Venture P'ship

Court Denies Dismissal of Challenged Statutes on Constitutional Grounds

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I have read the attached decision and order, dated November 28, 2017, signed by Judicial Hearing Officer Gerald HarrisThe decision of the JHO is hereby:++ADOPTED: §REJECTED:   **MODIFIED as follows:This constitutes the decision and order of the court.Dated: 12-1-2017New York, New YorkFindings, Conclusions, and Recommendation of the Judicial Hearing OfficerDECISION AND ORDER

*1 This criminal prosecution grows out of the tragic death of a child who was killed by brickwork which fell from a building owned by the corporate defendant, Esplanade Venture Partnership (“Esplanade”) and managed by the defendant Alexander Scharf (“Scharf”). Both defendants move to dismiss the Criminal Court Informations on the grounds that the statutes allegedly violated are unconstitutionally vague, on their face and as applied, and because the laws do not require a showing of criminal intent.The Statutes and Criminal Court InformationsEach defendant is charged with two counts of violating Section 28-201.1 of the Administrative Code of the City of New York (the “Code”). That statute provides, in relevant part, that it is unlawful to fail to maintain or operate any building in conflict with or in violation of any of the provisions of the Code or the rules of the Department. Each defendant is alleged to have violated Section 28-301.1 of the Code which requires that all buildings and all parts thereof “shall be maintained in a safe condition”. The Commissioner is empowered, by Section 28-201.2 of the Code, to promulgate rules classifying the violations. This was accomplished by the promulgation of Title 1 RCNY Section 102-01 (b).The Criminal Court Informations charge the defendants with committing Class 1 violations

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