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The People of the State of New York, Respondent v. Kenneth L. Axton

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


November 24, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KENNETH L. AXTON, JR., APPELLANT.

Appeal from judgments of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), rendered July 9, 2009. The judgments, after a non-jury trial, convicted defendant of failing to have a permit, failing to have a certificate of occupancy and nonpermitted use of a structure.

The opinion of the court was delivered by: Present: Iannacci, J.P., Nicolai and Molia, JJ

People v Axton (Kenneth)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 24, 2010

ORDERED that the judgments of conviction are affirmed.

Defendant was charged in three separate accusatory instruments with failing to have a permit (Brookhaven Town Code § 85-17), failing to have a certificate of occupancy (Brookhaven Town Code § 85-20) and nonpermitted use of a structure (Brookhaven Town Code § 85-61). At trial, a town investigator testified that defendant, owner of the premises located at 18 Milburn Road, South Beach, maintained a garage-type structure on the premises without having a permit therefor. The investigator also testified that defendant maintained a utility shed on the premises, for which a certificate of occupancy, dated May 26, 1972, had been issued, and that the utility shed was occupied by tenants, a nonpermitted use. In addition, defendant had not obtained a certificate of occupancy for the utility shed to be used as a dwelling.

At the conclusion of the People's case, defense counsel moved for a trial order of dismissal, arguing, among other things, that the town investigator had illegally obtained evidence pursuant to a search of the premises without a warrant or consent of the owner. The court reserved decision on the motion to dismiss. Defense counsel did not protest the absence of an immediate ruling and never asserted that he could not make a knowing decision whether to allow defendant to testify without the court ruling on his motion. Nevertheless, defendant subsequently testified that the utility shed was occupied by tenants and that he was exempt from obtaining a certificate of occupancy based on a prior nonconforming use exception to the Brookhaven Town Code. Defendant renewed his motion to dismiss the charges at the end of the trial.

The District Court denied defendant's motion for a trial order of dismissal. With respect to defendant's contention regarding an alleged illegal search of the premises, the court treated this aspect of the motion as one seeking a motion to suppress the evidence and held that it was untimely. The court subsequently found defendant guilty of all three charges.

Although a motion to suppress evidence may be made for the first time during trial "when, owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously" (CPL 710.40 [2]), defendant never raised such an argument at trial and there was nothing that prevented defendant from making a timely pretrial motion (see People v Freeman, 2 AD3d 242 [2003]). Consequently, insofar as defendant sought to suppress evidence, the District Court properly denied the motion as untimely (see CPL 255.20 [1]).

We reject defendant's contention that he was entitled to a prior nonconforming use exception for the utility shed. The evidence adduced at trial established that a certificate of occupancy was issued in 1972 for a utility shed and not a single-family dwelling. Thus, defendant does not qualify for such an exception (see Brookhaven Town Code § 85-21). We further find defendant's remaining contentions to be without merit.

Accordingly, the judgments of conviction are affirmed.

Iannacci, J.P., Nicolai and Molia, JJ., concur. Decision Date: November 24, 2010

20101124

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