The defendant, Terrile 97th Street LLC., is the record owner of the building at 258 West 97th street New York, New York. On October 23, 2015, the New York City Department of Buildings (“DOB”) issued a partial peremptory vacate order (the “VO”) to the defendant ordering that two apartments at the subject premises be vacated because occupancy of those apartments exceeded the permitted occupant load and posed an imminent danger to the life or public safety of the occupants, citing New York City Administrative Code (the “Code”) §§28-201.1 and 26-207.4.On February 10, 2017, DOB Inspector John Rosato conducted an inspection of the subject premises and observed that the defendant had failed to comply with the VO. Based on these observations, DOB Inspector Valdimir Pugach issued a criminal court summons directing the defendant to appear in criminal court on March 17, 2017. The summons alleges that defendant had violated the Code by failing to comply with the VO. Subsequent to that court appearance, the People served and filed a new accusatory instrument labeled an Information in which Inspector Rosato affirms, under penalty of law, that he observed apartment 73-C in violation of the VO, which required that the apartment “remain vacant and unoccupied” so long as the VO remained in effect.Defendant filed the instant motion, dated March 27, 2018, to dismiss the information as facially insufficient and jurisdictionally defective. On June 26, 2018, the People served and filed their response including a Superseding Information dated June 22, 2018. The Superseding Information is sworn to by Inspector Pugach and is accompanied by a supporting deposition from Inspector Rosato in which he alleges that he personally observed that apartment 73-C was in violation of the VO because it was occupied by Lucas Martinez, a worker in the subject premises. Defendant filed a reply dated July 26, 2018.To be facially sufficient, an accusatory instrument together with any supporting depositions must designate the offense charged and allege evidentiary facts supporting or tending to support the offense (CPL §§100.15 [2] & [3]). A misdemeanor information must provide “reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information” and must contain “non-hearsay allegations…[that] establish, if true, every element of the offense charged and the defendant’s commission thereof.” (CPL 100.40[1]; People v. Kalin, 12 NY3d 225 [2009]). All that is required is that the factual allegations in the information “give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” (Kalin, 12 NY3d at 230). Ultimately, an information “should be given a fair and not overly restrictive or technical reading.” (People v. Casey, 95 NY2d 354, 360 [2000]).Contrary to defendant’s contentions, the allegations that Inspector Rosato observed Lucas Martinez occupying apartment 73-C provide reasonable cause to believe that defendant violated the VO. The common-sense, as well as the dictionary definition of occupy with respect to an apartment is “to dwell or reside in.” (The American Heritage Dictionary [Second College ed 1985]). Furthermore, the legal definition of occupancy is the “act, state, or condition of holding, possession, residence, or tenancy, esp. of a dwelling or land.” (Black’s Law Dictionary 1106 [7th ed 1999]). Thus, “occupied” connotes more than a conclusion and serves as a description of a factual circumstance. At the pleading stage here, defendant has been given fair notice of the allegations against it sufficient to prepare a defense and to prevent being tried for the same crime more than once. Of course, at trial the People will be required to prove, beyond a reasonable doubt, that the person observed in the apartment was, in fact, residing there in violation of the directive contained in the VO.Defendant’s reply indicates the People have responded to its discovery demands and that defendant has withdrawn its motion to dismiss for lack of such response. The People are reminded of their continuing discovery obligations under the Criminal Procedure Law and case law (Brady v. Maryland, 373 US 83 [1963]; People v. Santorelli, 95 NY2d 412 [2000]; Giglio v. United States, 405 US 150 [1972]; Kyles v. Whitley, 514 US 419 [1995]).Accordingly, the Judicial Hearing Officer recommends that defendant’s motion to dismiss the Superseding Information for facial insufficiency and as jurisdictionally defective be denied. This opinion constitutes the findings, conclusions and recommendation of the Judicial Hearing Officer.THE PEOPLE OF THE STATE OF NEW YORK v. TERRILE 97th STREET LLC., Defendant; 2017SN015982I have read the attached decision and order, dated August 9, 2018, signed by Judicial HearingOfficer Gerald Harris.The decision of the JHO is hereby:‡ ADOPTED §REJECTED; **MODIFIED as followsThis constitutes the decision and order of the court.The court adopts the decision and order of the JHO as if the criminal court had rendered the determination itself.The matter will be adjourned for further action.The decision and order of the JHO are adopted to the extent of the modifications made by the criminal court above.
