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The People of the State of New York v. John Wagner and Marlene Wagner

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


November 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JOHN WAGNER AND MARLENE WAGNER,
APPELLANTS.

Appeal from a judgment of the Justice Court of the Town of Wawayanda, Orange County (Shawn R. O'Connor, J.), rendered May 5, 2010.

People v Wagner (John)

Decided on November 1, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 judgment convicted defendants, after a non-jury trial, of allowing the operation of a business on their residential property without a permit.

ORDERED that the judgment of conviction is affirmed.

Defendants were charged with violating Code of the Town of Wawayanda § 195-12 (A) (former Town of Wawayanda Local Law # 4 of 2009, § 3.6 [A]) by operating a landscaping business out of their residence without a permit. The evidence adduced at trial established that the operation of the business was comprised of keeping heavy machinery, equipment, and landscaping materials on the property, and allowing employees to arrive in the morning and leave their cars parked at the residence during the day while they and the heavy equipment were on job sites elsewhere. After a non-jury trial, the Justice Court found defendants guilty as charged. The court imposed a fine of $2,500 and a conditional discharge prohibiting operation of the business - - including the parking of the landscaping and employee vehicles - - from the property. Defendants were required to submit to town inspections to determine compliance.

Contrary to defendants' contention, home businesses in the Town of Wawayanda require a permit to operate lawfully. The operation of a landscaping business out of defendants' residential property was unlawful both before and after the largely cosmetic change in the law, because defendants had never obtained a permit therefor. Consequently, defendants cannot avail themselves of the grandfathering exception in the current Code.

We find that the Justice Court acted within its discretion in imposing a conditional discharge for a violation of Code of the Town of Wawayanda § 195-12 (A), even absent the authority for such a sentence in the Code itself. Local zoning laws are enacted pursuant to Town Law § 268 (1), and penalties for violations are governed by the Penal Law (see Penal Law § 5.05 [2]). We further find that the sentence was neither unduly harsh nor excessive.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: November 01, 2011

20111101

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