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, RESPONDENT,
GREAT COVE MARINE, INC., APPELLANT.
Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), rendered July 1, 2009.
People v Great Cove Mar., Inc.
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This opinion is uncorrected and will not be published in the printed Official Reports.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: TANENBAUM, J.P., MOLIA and LaCAVA, JJ
The judgment convicted defendant, after a non-jury trial, of creating a noise disturbance through the operation of machinery, in violation of Islip Town Code § 35-3 (H).
ORDERED that the judgment of conviction is affirmed.
Defendant, the operator of a boat yard, was charged in an information with violating Islip Town Code § 35-3 (H), which prohibits "the operation of any machinery, equipment, pump, fan, air-conditioning apparatus or other mechanical device in such a manner as to create a noise disturbance.[*fn1 ]"
At the non-jury trial, the two complainants testified that, from inside their respective homes, they could hear, and were annoyed by, machinery, including fork and travel lifts, power washers and diesel engines, operating on defendant's premises. Complainant Hofman, who lives approximately 125 feet away from defendant's premises, indicated that, as a result of the noise emanating from defendant's marina, he had to turn up his radio. Complainant Silhan, whose home is about 200 feet from the premises across the canal, testified that the noise caused him to avoid his backyard. The defense witness acknowledged that since the incident, defendant has upgraded from a gas-powered washer to an electric model, which is "much quieter." The defense witness also testified that it was previously impossible to conduct a conversation while standing next to the gas-powered washer. The District Court found defendant guilty of the charged offense, and this appeal ensued.
Defendant's claims with respect to the legal sufficiency of the trial proof are not preserved for appellate review (see People v Gray, 86 NY2d 10, 19 ; see also People v Santos, 869, 870  [preservation rule applies to non-jury trials]). In any event, the evidence adduced at trial, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 ), was legally sufficient to establish defendant's guilt of the charged offense, as the trial testimony established that defendant's use of its machinery on the morning of December 2, 2006 created a "noise disturbance" as defined in the Islip Town Code.
In conducting our independent weight of the evidence review (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348 ), we view the evidence in light of the elements of the offense in this non-jury trial and accord great deference to the District Court's opportunity to view the witnesses, hear their testimony and observe their demeanor (People v Romero, 7 NY3d 633, 644-645 ; People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ; People v Ramirez, 58 AD3d 757, 758 ). Upon a review of the record here, we find that the verdict was not against the weight of the credible evidence (see People v Lane, 7 NY3d 888, 890 ; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495).
Defendant's contention that Islip Town Code § 35-3 (H), which governs noise made by "machinery," conflicts with section 35-3 (E)[*fn2 ], which governs noise made by "heavy equipment," is without merit. Even accepting defendant's argument that the machinery complained of would qualify as "heavy equipment" under section 35-3 (E), that provision is inapplicable to the instant case, because its terms are limited to weekdays between the hours of 7:00 A.M. and 8:00 P.M., and the instant violation occurred on a Saturday. Moreover, the provision involved herein gives fair notice of the prohibited conduct, as section 35-3 sets forth an exclusive list of 12 acts which violate the ordinance. The noise ordinance also clearly proscribes noises which constitute a public nuisance using an objective, reasonable person standard for enforcement, as it defines "noise disturbance" in relevant part as "that level of sound which . . . [a]nnoys or disturbs a reasonable person of normal auditory sensitivities" (Islip Town Code § 35-2 [A]; see People v Bakolas, 59 NY2d 51, 55 , citing People v New York Rock Trap, 57 NY2d 371, 380-381 ; see also People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 ). Since the ordinance does not fail to provide a person of ordinary intelligence fair notice of the conduct prohibited, or officials with clear standards for enforcement, it is not impermissibly vague (see People v Stuart, 100 NY2d 412, 420 ) as applied to defendant (see People v Taylor, 9 NY3d 129, 150 ).
Accordingly, the judgment of conviction is affirmed.
Molia and LaCava, JJ., concur.
Tanenbaum, J.P., taking no part.
Decision Date: April 01, 2011