SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
April 1, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
RIAN J. WHITE,
Appeal from three judgments of the Justice Court of the Town of East Hampton, Suffolk County (Lisa R. Rana, J.), rendered March 12, 2009.
People v White (Rian)
Decided on April 1, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
The judgments convicted defendant, respectively, upon a jury verdict, of (1) failing to obtain a building permit and failing to obtain a certificate of occupancy in September 2006; (2) failing to obtain a building permit and failing to obtain a certificate of occupancy in January 2007; and (3) failing to maintain a premises free of litter.
ORDERED that the judgment convicting defendant of failing to maintain a premises free of litter is affirmed; and it is further,
ORDERED that the judgments convicting defendant of failing to obtain building permits and failing to obtain certificates of occupancy are each modified, on the law, by vacating the conviction of failing to obtain a building permit, dismissing so much of each accusatory instrument as relates to this charge, and by remitting the applicable fine, if paid; as so modified, these judgments of conviction are affirmed.
As is relevant to this appeal, defendant was charged in an information with failing to obtain a building permit (East Hampton Town Code § 102-6 [A] ) and a certificate of occupancy (East Hampton Town Code § 102-13 [A]) in September 2006, for a shed located on his property at 11 Hodder Avenue. In a second information, defendant was charged with failing to obtain a building permit and a certificate of occupancy for the same shed on the same property in January 2007. In a third information, defendant was charged with failing to maintain his property, located at 12 Fanning Avenue, free of litter (East Hampton Town Code § 167-10). Following a jury trial, defendant was convicted of the foregoing charges.
Defendant contends that the Justice Court improperly denied his motion to dismiss the informations as legally insufficient on the ground that they did not establish his ownership or control of the subject properties by non-hearsay allegations of fact. In order to be sufficient on its face, an information (and/or any supporting depositions) must allege, among other things, "facts of an evidentiary character . . ." (CPL 100.15 ) that "establish, if true, every element of the offense charged . . ." (CPL 100.40  [c]; see People v Dumas, 68 NY2d 729, 731 ). The informations herein alleged that defendant owned or controlled the subject properties. The element of ownership can be fairly implied from the complainants' duties as town ordinance inspector and town ordinance enforcement officer (see People v Fischer, 6 Misc 3d 135[A], 2005 NY Slip Op 50213[U] [App Term, 9th & 10th Jud Dists 2005]; People v Caravousanos, 2 Misc 3d 7 [App Term, 9th & 10th Jud Dists 2003]). Moreover, the source or the validity of the complainants' knowledge is a matter to be raised at trial (see People v Casey, 95 NY2d 354, 360 ; People v Fischer, 6 Misc 3d 135[A], 2005 NY Slip Op 50213[U]; People v Caravousanos, 2 Misc 3d 7). Consequently, the informations are not facially insufficient.
At trial, the town ordinance inspector testified, among other things, that in both September 2006 and January 2007, he had observed a shed on defendant's property at 11 Hodder Avenue, which shed was overflowing with construction debris, broken windows and doors, lawnmower motors, cans, garbage, plastic, metal and wood. However, he did not observe defendant construct, erect, improve, transport, demolish, remove or work on the shed, and he indicated that it was possible that the shed had existed prior to defendant's ownership of the property. The ordinance enforcement officer testified, among other things, that he had observed that the front lawn of defendant's property at 12 Fanning Avenue was covered with litter consisting of garbage bags, household furniture, mannequins, cans of food, television sets, insulation, and other building materials, as well as other types of refuse.
The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 ), was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of failing, on two occasions, to obtain certificates of occupancy for the shed at 11 Hodder Avenue in violation of East Hampton Town Code § 102-13 (A), and failing to maintain the premises at 12 Fanning Avenue free of litter in violation of East Hampton Town Code § 167-10. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear their testimony and observe their demeanor and assess their credibility (see People v Mateo, 2 NY3d 388, 410 ; People v Bleakley, 69 NY2d 490, 495 ). Upon a review of the record, we are satisfied that the verdicts convicting defendant of failing to obtain certificates of occupancy on two occasions and failing to maintain the premises free of litter, were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 ).
The relevant portion of East Hampton Town Code § 102-6, "Application for building permit," states: " A.Without having first obtained a building permit from the Building inspector therefor, no person, partnership, association, firm or corporation shall: (1)Commence, cause or continue the erection, construction, enlargement, removal, improvement, transportation or demolition of any building or structure, or any portion thereof, unless a particular provision of this Code explicitly exempts the particular action from the need for a building permit." At trial, the town ordinance inspector did not testify that he had observed defendant place the shed on the subject property or allow the shed to be placed on the property. East Hampton Town Code § 102-6 (A) (1) does not prohibit a property owner from maintaining or keeping a structure on his property without a building permit; rather it prohibits the "erection, construction, enlargement, removal, improvement, transportation or demolition of any building or structure" without a building permit. Since no evidence was adduced at trial showing that defendant had engaged in any of the acts prohibited by East Hampton Town Code § 102-6 (A) (1) regarding the shed, the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d at 621), was legally insufficient to establish defendant's guilt of violating this code section beyond a reasonable doubt.
Furthermore, we find that defendant's sentences were neither harsh nor excessive (see People v Suitte, 90 AD2d 80 ). It is uncontroverted that defendant's sentences were within the permissible statutory guidelines. Since defendant has not shown that any extraordinary circumstances exist, we decline to modify the sentences (see People v Hodges, 13 AD3d 979 ; People v Dolphy, 257 AD2d 681 ).
Accordingly, the judgment convicting defendant of failing to maintain a premises free of litter is affirmed and each judgment convicting defendant of failing to obtain a building permit and failing to obtain a certificate of occupancy is modified by vacating the conviction of failing to obtain a building permit, and dismissing so much of each accusatory instrument relating to this charge.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: April 01, 2011
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