People v. 156 W. 15th St. Chelsea LLC

The following papers were considered on the motion(s):Papers NumberedDefendant’s notice of motion to suppress evidence, attorney affirmation in support with exhibits, and memorandum of law in support 1Defendant’s notice of motion to dismiss summonses and attorney affirmation in support with exhibits           2Defendant’s notice of Omnibus Motion, attorney affirmation in support, and demand to produce.   3People’s attorney affirmation in response to defendant’s omnibus motions and motions to suppress and to dismiss with exhibits  4Defendant’s attorney affirmation in reply to its motions      5DECISION AND ORDERThe three above-captioned summons matters (New York County Criminal Court dockets numbered 2018SN005368 [summons 443646930], 2018SN005369 [summons 443464912], and 2018SN005476 [summons 443646926] were referred to Part BTP1 from Part SAP2A for determination.The summons in docket number 2018SN005368 (summons 443646930) charges the defendant with “failure to provide a fire safety plan and evacuation plan” on September 22, 2017 at 2030 hours, at 156 W15th Street in violation of New York City Administrative Code (“AC”) “) §§15-216 (a) and (b),¹ based upon the officer’s allegations in the summons that he “personally observed transient use occupancy at 156 [W]15[th] St, throughout without a fire safety plan on the premises as required by New York City Fire Code (“Fire Code” or “FC”) §404.2.1 (8),” and another affidavit (Form A-201) by the same officer on the same date, alleging that the defendant committed the offense of AC §§15¬216 (a) and (b) predicated upon the defendant’s “failure to have fire safety director on duty FC [§] 404.2.1 (8),” and that the officer “personally observed transient use occupancy at 156 W15th St throughout without a fire safety director on duty.”The summons in docket number 2018SN005469 (summons 4434646912) charges the defendant with “failure to comply with Fire Commissioner Violation Order E494501 in violation of AC §§15-233.1 (a) and (b),² based upon the officer’s allegations that he “personally observed no fire alarm system for transient use hotel operation throughout building, without emergency light and fire extinguisher.” Attached to the summons is a City of New York Fire Department Violation Order E494501, dated March 7, 2017, identifying the defendant as the owner of the premises and directing the defendant to correct violations by doing the following: (1) “provide an approved fire alarm for transient use occupancy where required by the Building Code, Construction Code, Fire Code, according to NFPA 72 [The National Fire Alarm and Signaling Code]” as per FC §907.2;³ (2) to “provide adequate emergency light for transient use occupancy;” and (3) to “provide adequate fire extinguisher for transient use occupancy. The Violation Order also lists a “remedy,” “discontinue transient use occupancy,” and indicates that a summons will be served for violations of the Administrative Code of the City of New York for failure to comply with the violation order forthwith. Also attached is an affidavit (Form A-201), dated September 22, 2017, wherein the officer alleges that on September 22, 2017, the defendant committed the offenses of AC §§15-223.1 (a) and (b) predicated upon “failure to comply with violation order E494501.” The officer’s affidavit further alleges that on the above date and at the subject premises he “personally observed that defendant failed to fully comply with Fire Commissioner’s Order #E494501 (a copy of which is annexed), to wit…I personally observed no fire alarm system for the transient use hotel operation throughout the building without emergency light and fire extinguisher.”The summons in docket number 2018SN005476 (summons 443646926) charges that the defendant “failed to provide a fire safety director on duty at the time of inspection” on September 22, 2017 at 2030 hours, at 156 W15th Street in violation of AC §§15-216 (a) and (b), based upon the officer’s allegations in the summons that he “personally observed transient use occupancy at 156 W15[th] St, throughout without a fire safety director on duty,” and another affidavit (Form A-201) by the same officer on the same date, alleging that the defendant committed the offenses of AC §§15-216 (a) and (b) predicated upon the defendant’s “failure to have fire safety director on duty FC [§] 401.6.5.2,”⁴ and that the officer “personal observed transient use occupancy at 156 W15th St throughout without a fire safety director on duty.”All three summonses were returnable on March 28, 2018 and were served upon the defendant through the New York Secretary of State pursuant to the New York State Limited Liability Law §303.Defendant’s three motions, two dated April 20, 2018 and an omnibus motion, dated May 18, 2018 (filed with the court for the first time on June 8, 2018), seek dismissal of the above-captioned summonses, pursuant to Criminal Procedure Law (“CPL”) §§170.30 (1) (a)⁵ and (1) (f) for lack of jurisdiction; or, alternatively, suppression of evidence obtained as a result of inspections of 156 W 15th Street conducted on August 28, 2014, October 15, 2014, March 7, 2017, and September 22, 2017; and omnibus relief including an order directing the People to comply with the defendant’s request for a bill of particulars (included as part of the defendant’s omnibus motion); compelling the People to comply with the defendant’s discovery demand (annexed to the defendant’s omnibus motion)⁶; directing the People to comply with their obligations under Brady v. Maryland, 373 US 83 (1963) and People v. Rosario, 9 NY2d 286 (1961); suppressing statements, or ordering a hearing pursuant to People v. Huntley, 15 NY2d 72 (1965); although not included in the notice of motion relating to the defendant’s omnibus motion, the attorney affirmation in support includes an alternative list of omnibus relief sought which includes suppression of any tangible intangible or testimonial evidence concerning observations obtained from the entry onto the defendant’s premises without a search warrant, consent, or other valid exception, or for a hearing, pursuant to Mapp v. Ohio, 367 US 643 (1961).The People responded in opposition and the defendant filed an attorney affirmation in reply on June 18, 2018.The defendant’s motions are decided as follows:Motion to dismissThe defendant’s motion to dismiss the above three summonses for lack of jurisdiction is denied for the reasons that follow. The defendant argues that this court lacks jurisdiction over the alleged violations of the New York City Administrative Code and Fire Code as set forth in the summonses because the summonses were issued by a Fire Protection Inspector of the New York City Fire Department assigned to the Mayor’s Office of Special Enforcement (“OSE”). The defendant contends that this court lacks jurisdiction over these summonses because the OSE was created by an unlawful Executive Order of the Mayor in 2006, that the Department of Buildings has exclusive power to enforce the New York City Building Code and to enter buildings for purposes of inspection under Administrative Code §28-103.13.The People argue that this court has jurisdiction and that the Mayor’s Executive Order creating the OSE was lawful and not in violation of any other City laws and that coordination of enforcement efforts between City departments and agencies in the interest of public safety is encouraged.The three summonses here involve inspections of the premises on March 7, 2017 and September 22, 2017 by a Fire Protection Inspector who issued the summonses for alleged Administrative Code and Fire Code violations. Fire Protection Inspectors, as officers or employees of the New York City Fire Department are authorized to enter and inspect buildings in the City of New York for compliance with the provisions of law or rules and regulations enforced by the department (see New York City Charter §492). Here, according to the summonses before the court, the Fire Protection Inspector entered the premises on March 7, 2017 and September 22, 2017 and issued summonses alleging fire safety related violations of the Administrative Code and the Fire Code.CPL §170.30 (1) (f) provides that after arraignment upon an information, a simplified information, prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: [t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged (CPL §170.30 [1] [f]).Defendant’s submission has failed to establish that there is some jurisdictional or legal impediment to conviction of the defendant for the offenses charged in the three summonses. This court has trial jurisdiction of all offenses other than felonies (Constitution of the State of New York, Art VI §15 [c]; CPL §10.30). Because none of the charges set forth in the above summonses are felonies, this court has jurisdiction over the three summonses.Accordingly, the defendant’s motion to dismiss for lack of jurisdiction is denied.Motion to suppressThe defendant seeks suppression of all evidence, including statement and tangible and intangible evidence obtained as a result of unlawful searches or seizures, or alternatively, a Huntley and Mapp hearing, relating to the inspections of the premises on four dates, August 28, 2014, October 15, 2014, March 7, 2017, and September 22, 2017.As an initial matter, the summonses before the court only refer to inspections of the premises on March 7, 2017 and September 22, 2017. Although referred to in the defendant’s motion, neither of the 2014 inspections of the premises⁷ nor any evidence allegedly obtained as a result of those inspections is before the court. Accordingly, to the extent that the defendant’s motion seeks to suppress evidence obtained from inspections of the premises conducted in 2014, the motion is denied.The defendant argues any evidence obtained as a result of the inspections of the premises on March 7, 2017 and September 22, 2017, should be suppressed as the result of an illegal search and seizure because the inspection was without a search warrant and without consent.The People argue that the suppression motion should be denied because there are no statements made by the defendant and because any third-party statements or other evidence obtained during the inspections were obtained on consent.The court finds that no search warrant was necessary for the inspections conducted by the Fire Protection Inspector on March 7, 2017 and September 22, 2017 because Fire Department Officers are granted a right of entry to conduct such inspections under New York City Charter §492.Accordingly, the motion to suppress statements and other evidence obtained as a result of the inspections on March 7, 2017 and September 22, 2017 is denied and the motion for a hearing under Huntley/Mapp is denied.Motion for Discovery and Request for a Bill of ParticularsThe defendant’s motions relating to the discovery demand and request for a Bill of Particulars, pursuant to CPL §§240.20 and 200.95, are denied for defendant’s failure to demonstrate that it served a timely demand for such material upon the People and that the People have refused to comply with the demand and request (CPL §§200.95 [2] – [6]; 240.40; and 240.80). The People are reminded of their continuing obligations under Brady v. Maryland, 373 US 83 (1963).Reservation of RightsThe branch of the Defendant’s motion seeking the right to make further motions is granted to the extent provided for by CPL §255.20 (3).Any other relief sought but not explicitly addressed above is hereby denied.The foregoing constitutes the decision and order of this court.DATE: August 8, 2018New York, NY