Appeal from judgments of the City Court of Poughkeepsie, Dutchess County (John B. Garrity, J.), rendered June 27, 2007.
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This opinion is uncorrected and will not be published in the printed Official Reports.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: IANNACCI, J.P., NICOLAI and MOLIA, JJ
The judgments convicted defendant, after a non-jury trial, of, respectively, possession of an open container of alcohol and burning garbage, refuse or rubbish in an open fire.
ORDERED that the appeal from the judgment convicting defendant of possession of an open container of alcohol is dismissed as abandoned; and it is further,
ORDERED that the judgment convicting defendant of burning garbage, refuse or rubbish in an open fire is affirmed.
As relevant to the judgment of conviction being reviewed on this appeal, defendant was charged with burning garbage, refuse or rubbish in an open fire (Code of the City of Poughkeepsie § 11-25). Following a non-jury trial, defendant was convicted of the charged offense.
Code of the City of Poughkeepsie § 11-25 provides, in pertinent part, that "[n]o person shall burn any garbage, refuse or rubbish in an open fire within the city, except in such manner as is prescribed by the Fire Chief."
As defendant concedes, his challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review (see CPL 470.05 ; People v Hawkins, 11 NY3d 484, 492 ). In any event, defendant's contention that the evidence is legally insufficient because the prosecution failed to prove that he was not acting in a manner prescribed by the Fire Chief relies on a misinterpretation of the statute. The fact that the qualifying language of section 11-25 of the Code of the City of Poughkeepsie is introduced by the word "except" is not conclusive in determining whether the qualifying language sets forth an exception or a proviso (see People v Davis, 13 NY3d 17, 31 , citing McKinney's Cons Laws of NY, Book 1, Statutes § 211, Comment, at 370). The "[e]ssential allegations are generally determined by the [law] defining the crime. If the defining [sanction] contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the [sanction], the exception generally is [a proviso which represents] a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" (People v Farella, 19 Misc 3d 145[A], 2008 NY Slip Op 51129[U], *1 [App Term, 9th & 10th Jud Dists 2008], quoting People v Kohut, 30 NY2d 183, 187 ; see also People v Santana, 7 NY3d 234, 237 ). In the instant case, the ordinance requires reference to the Fire Chief's regulations to determine the applicability of the qualifying language. Thus, as a matter of "common sense and reasonable pleading" (People v Devinny, 227 NY 397, 401 ), the drafters of the Code of the City of Poughkeepsie did not intend that the People plead and prove that defendant did not act in a manner prescribed by the Fire Chief (see People v Davis, 13 NY3d at 31-32). Instead, this qualifying language was intended as a proviso, to be raised by defendant either as a bar to prosecution or as a defense at trial, and not as a substantive element of the offense. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 ), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt of the crime charged.
In conducting our independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ; People v Bleakley, 69 NY2d 490, 495 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 ; People v Mateo, 2 NY3d 383, 410 ). Upon our review of the record, we find that the judgment convicting defendant of burning garbage, refuse or rubbish in an open fire was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 ; People v Bleakley, 69 NY2d at 493).
Accordingly, the judgment convicting defendant of burning garbage, refuse or rubbish in ...