People v. Hernandez (Diana)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: August 8, 2019
• Docket: 2019 NYSlipOp 51303(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Diana Perez Hernandez, Appellant.

Daniel P. Trunk, for appellant. Leventhal, Mullaney & Blinkoff, LLP (Jeffrey Blinkoff of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Village of Manorhaven, Nassau County (Peter Gallanter, J.), rendered August 21, 2018. The judgment convicted defendant, after a nonjury trial, of violating Village of Manorhaven Code § 155-103, and imposed sentence.

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

Defendant was charged with violating Village of Manorhaven Code § 155-103 based upon an alleged "illegal occupancy" at 30 Linwood Road on November 4, 2017 at 1:30 p.m. The accusatory instrument, labeled an "information," does not include any factual allegations at all. CPL 100.15 (1) states that an information "must contain an accusatory part and a factual part," and CPL 100.15 (3) sets forth the required contents of the factual part. Without having alleged any facts to demonstrate how the occupancy was illegal, the information is facially insufficient and must be dismissed (see generally People v Jones, 9 NY3d 259 [2007]; People v Sumter, 151 AD3d 556 [2017]).

We note that the information is more in the nature of an appearance ticket issued in [*2]accordance with CPL 150.10 and 150.20, which does not require a factual part. However, an appearance ticket is not an accusatory instrument and its filing does not confer jurisdiction over a defendant (see People v Scott, 3 NY2d 148 [1957]; People v Tarnoff, 54 Misc 3d 139[A], 2017 NY Slip Op 50151[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Needleman, 35 Misc 3d 149[A], 2012 NY Slip Op 51118[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

Accordingly, the judgment of conviction is reversed and the information is dismissed.

ADAMS, P.J., TOLBERT and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 08, 2019