A Kings Criminal Lawyer said that, based upon two isolated sales of a single pack of “untaxed” cigarettes and the confiscation, pursuant to a search warrant, of an additional 12 packs, all of which took place more than four months ago, the City of New York applies to this court to authorize its Police Department to immediately, and without notice, use force to close for all purposes the “commercial establishment” at which the cigarettes were sold and found.
A Kings Patronizing Prostitution Lawyer said that, with a proposed order to show cause, the City of New York seeks ex parte a temporary closing order and a temporary restraining order with respect to “the commercial establishment doing business on the ground floor” at Ralph Avenue, Brooklyn, as “Family Grocery Corp.” The City is the named plaintiff in the summons and complaint on the underlying action, and the named defendants include the record owners of the real property at Ralph Avenue, and “fictitiously named parties intended being the owners, lessees, operators or occupants of `Family Grocery Corp.'” Service of the summons and complaint would be made with service of the order to show cause.
The issue in this case is whether the ex parte motion for the temporary closing order and a temporary restraining order with respect to “the commercial establishment doing business on the ground floor” at Ralph Avenue, Brooklyn, as “Family Grocery Corp by the plaintiff should be granted.
A “public nuisance” is defined in the statute to include “any building, erection or place used for the purpose” of specified criminal offenses, such as prostitution, obscene performances, promotion of obscene material, or violation of drug or alcoholic beverage control laws, and includes “any building, erection or place wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law”. The cited provision of the Penal Law describes the crime of criminal nuisance in the second degree as “knowingly conducting or maintaining any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.”
The Nuisance Abatement Law specifically authorizes both a temporary closing order and a temporary restraining order as requested by the City, but only after a finding “by clear and convincing evidence” that a public nuisance is being “conducted, maintained or permitted,” and that “the public health, safety or welfare immediately requires” the granting of the orders. There is nothing in the law to suggest that “clear and convincing evidence” or “immediately requires” has any meaning for these purposes that is different from general law or understanding.
The City purports to make the requisite showing with the affidavit of a police officer and the affirmation of its counsel. The only basis for the City’s contention that a “public nuisance” exists at Ralph Avenue is that an alleged “criminal nuisance” is occurring there in that the property is a “premises, place or resort where persons gather for purposes of engaging in unlawful conduct” the “unlawful conduct” being the “illegal sale and/or storage of untaxed cigarettes” in violation of section 1814 of the Tax Law.
In an affidavit dated October 3, 2007, Police Officer provides evidence of the sale of “one (1) pack of untaxed Newport cigarettes” on May 21, 2007; the sale of “one (1) pack of untaxed Newport cigarettes” on June 5, 2007; the confiscation of “twelve packs of untaxed cigarettes” on execution of a search warrant on June 14, 2007; and the arrest on June 14 of three persons for violation of section 1814 of the Tax Law. The names of the persons arrested are not given in the affidavit. One name appears on an attached Property Clerk’s invoice, but it is not the name of either of the record owners of Ralph Avenue.
The Police Officer’s affidavit makes no mention of the “public health, safety or welfare”. The affirmation of counsel asserts, “Upon information and belief, the community and neighboring businesses have severely suffered and continue to suffer as a result of the illegal sale and warehousing of untaxed cigarettes within the subject premises,” and that “the public welfare requires the immediate abatement of the public nuisance by an order closing the premises against all use pending the determination of this action.” Counsel provides no evidentiary support for these conclusory statements, or for the contention that “the subject premises is a serious public nuisance, and as such should not be allowed to remain open one more day.” Counsel provides no explanation for the delay of more than four months between June 14, the date of the last documented violation of the tax statute, and October 23, the date of the City’s application.
To Be cont….
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