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The People of the State of New York v. Frances Zito

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


October 31, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
FRANCES ZITO,
APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), dated March 1, 2010.

People v Zito (Frances)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2011

PRESENT:: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The judgment convicted defendant, after a non-jury trial, of unlawfully depositing or storing waste or debris on her property.

ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

Defendant was charged in an accusatory instrument with unlawfully allowing or permitting "the outdoor storage, deposit, placement or maintenance of debris" on her property (Babylon Town Code § 133-25 [A] [1]). After a non-jury trial, the District Court convicted defendant of the charged offense.

We exercise our interest of justice jurisdiction to reach defendant's unpreserved claim that the evidence was legally insufficient. In the context of Babylon Town Code § 133-25 (A) (1), we find that storage and maintenance connote a sense of permanence, in that the item has remained on the property for a prolonged period of time. Indeed, this court has dismissed, as jurisdictionally defective, accusatory instruments which allege storage only for a single time and date (see People v Castanza, 26 Misc 3d 133[A], 2010 NY Slip Op 50093[U] [App Term, 9th & 10th Jud Dists 2010]; People v Gomes, 11 Misc 3d 142[A], 2006 NY Slip Op 50734[U] [App Term, 9th & 10th Jud Dists 2006]). Here, the evidence adduced at trial established that debris was observed on defendant's property only on a single occasion, and there was no evidence that defendant was observed depositing or placing debris on her lot, or permitting anyone else to deposit or place debris there. Consequently, we find that, even when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), the evidence was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of violating Babylon Town Code § 133-25 (A) (1). Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

In light of this disposition, we do not reach defendant's remaining contentions.

Tanenbaum, J.P., and Iannacci, J., concur.

Molia, J., dissents in a separate memorandum.

Molia, J., dissents and votes to affirm the judgment of conviction in the following memorandum:

Under the circumstances presented in this matter, I would decline to reach, in the interest of justice, defendant's unpreserved contention regarding the legal sufficiency of the trial evidence. Accordingly, as defendant raises no other issue warranting reversal, I respectfully dissent and vote to affirm the judgment of conviction.

Decision Date: October 31, 2011

20111031

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