42 Misc. 2d 636 | N.Y. App. Term. | 1964
The defendant was convicted under section 2040 of the Penal Law of willfully and intentionally failing to furnish water service, required to he furnished by the express or implied terms of the lease or rental agreement and necessary to the customary use of the building referred to in the complaint. There was no proof offered of the terms of the leases or rental agreements and therefore the People failed to establish a willful and intentional violation of the terms of a lease (People v. Weiss, 237 N. Y. S. 2d 910). There may not be a conviction for willful violation of a lease unless there was a failure to furnish a service or facility required to be furnished by the terms, express or implied, of the lease (People v. Sims, 279 App. Div. 1031). Even if the court assumes that water service was an implied term of the tenancy, there is no proof that appellant willfully and intentionally failed to furnish such service.
The water stoppage was initially due to a malfunction in the sewerage main and the water was then turned off to make the necessary repairs. The fact that the malfunction was repaired and water service restored diligently and quickly after the appellant was notified of the problem, negates a conclusion that he willfully and intentionally failed to provide water service.
The judgment of conviction should be reversed on the law and on the facts, complaint dismissed and fine remitted.
Concur — Hecht, Capozzoli and Hofstadter, JJ.
Judgment reversed, etc.
