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People v. Baumgarten

Supreme Court of New York, Second Department

October 10, 2012

The People of the State of New York, Respondent,
v.
Barbara A. Baumgarten, Appellant.

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

Appeal from judgments of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered May 20, 2010. The judgments convicted defendant, upon jury verdicts, of one charge of violating Brookhaven Town Code § 16-4 and three charges of violating Brookhaven Town Code § 16-3, respectively.

ORDERED that the judgments convicting defendant of violating Brookhaven Town Code § 16-3 are reversed, on the law, the accusatory instruments charging those offenses are dismissed, and the fines and surcharges imposed thereon, if paid, are remitted; and it is further,

ORDERED that the judgment convicting defendant of violating Brookhaven Town Code § 16-4 is affirmed.

Following a jury trial, defendant was convicted of one charge of violating Brookhaven Town Code § 16-4 and three charges of violating Brookhaven Town Code § 16-3. On appeal, defendant contends, among other things, that the accusatory instruments are defective, and that the District Court improperly denied her motion to suppress the search warrant, improperly refused to allow her to file a written motion for discovery demands on the eve of trial, improperly restricted her cross-examination of a witness, and improperly denied her application to subpoena a witness.

Brookhaven Town Code § 16-3 prohibits "buil[ding], install[ing], enlarg[ing] or alter[ing]" any wall, structure, plumbing, building or part thereof without obtaining a proper permit therefor. The factual portions of the informations charging defendant with violating Brookhaven Town Code § 16-3 describe how the premises had been converted and altered into apartments. These allegations, however, even if given a "reasonable, not overly technical reading" (People v Konieczny, 2 N.Y.3d 569, 576 [2004]), do not "establish, if true" (CPL 100.40 [1] [c]), any "buil[ding], install[ing], enlarg[ing] or alter[ing]" of the subject property by defendant (Brookhaven Town Code § 16-3; see People v Jones, 9 N.Y.3d 259, 262 [2007]; People v Alejandro, 70 N.Y.2d 133, 134-135 [1987]). The informations fail to allege that the conversion took place while defendant owned the property (People v Savino, 2 Misc.3d 75');">32 Misc.3d 75 [App Term, 9th & 10th Jud Dists 2011]; People v M. Santulli, LLC, 28 Misc.3d 136 [A], 2010 NY Slip Op 51449[U] [App Term, 9th & 10th Jud Dists 2010]; People v Santulli, 28 Misc.3d 136 [A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010]; see People v Caravousanos, 2 Misc.3d 7, 10 [App Term, 9th & 10th Jud Dists 2003]; People v Cullen, 195 Misc.2d 692, 695 [App Term, 9th & 10th Jud Dists 2003]). Consequently, we find that the informations charging defendant with violating Brookhaven Town Code § 16-3 are jurisdictionally defective.

However, the information charging defendant with violating Brookhaven Town Code § 16-4 alleges that the basement was occupied as an apartment in contravention of the certificate of occupancy. This allegation was sufficiently evidentiary to support the elements of the offense charged (see CPL 100.15 [3]; People v Dumas, 68 N.Y.2d 729 [1986]).

Defendant's conclusory allegations in support of her motion to suppress the search warrant failed to raise a factual issue that would require a hearing (see CPL 710.60 [3]) and, thus, we find that the District Court properly denied the motion. Defendant's motion for discovery, made on the eve of trial, was untimely (see CPL 255.20 [1]). Since defendant failed to show good cause for her failure to timely make the motion (see CPL 255.20 [3]), the District Court properly determined that defendant had waived her right to discovery (see e.g. People v Lawrence, 64 N.Y.2d 200, 206 [1984]; People v De Vivo, 282 A.D.2d 770, 772 [2001]; People v Lopez [Salvatore], 197 A.D.2d 594 [1993]). In addition, defendant's contention that the court improperly limited the scope of her cross-examination of the town inspector is unpreserved for appellate review, as defendant failed to object at trial (see CPL 470.05). In any event, we note that the court did not improperly exercise its broad discretion over the nature and extent of cross-examination (see People v Schwartzman, 24 N.Y.2d 241 [1969]) by restricting questions which threatened to mislead the jury (see Delaware v Van Arsdall, 475 U.S. 673, 679 [1986]; People v Francisco, 44 A.D.3d 870 [2007]). Moreover, inasmuch as defendant failed to show that the proposed testimony of her witness was relevant, material and noncumulative, the court properly denied her application for a subpoena.

To the extent that defendant's appellate contentions raise a challenge to the legal sufficiency of the evidence, such challenge is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 491-492 [2008]; People v Hines, 97 N.Y.2d 56, 61 [2001]; People v Gray, 86 N.Y.2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620, 621 [1983]), we find that defendant's conviction of violating Brookhaven Town Code § 16-4 was established beyond a reasonable doubt. The evidence adduced at trial showed that, on February 8, 2008, the basement of defendant's premises was occupied/used as a habitable space and that the certificate of occupancy did not authorize such use. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]), we are satisfied that the verdict convicting defendant of violating Brookhaven Town Code § 16-4 is not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-646 [2006]). Defendant's remaining contentions lack merit.

Accordingly, the judgments convicting defendant of violating Brookhaven Town Code ยง 16-3 are reversed and the accusatory instruments charging those offenses are dismissed, and the judgment convicting defendant ...


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