Opinion
2008-476 S CR.
Decided January 22, 2010.
Appeal from four judgments of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J.), rendered January 31, 2008. The judgments convicted defendant, after a nonjury trial, of littering and dumping on private property, causing an obstruction on a public way, and two charges of storing an unregistered vehicle on private property (one charge was filed in May 2006 and the second charge was filed in December 2006).
ORDERED that the judgments convicting defendant of littering and dumping on private property in violation of Brookhaven Town Code § 45-4 (C) and of storing an unregistered vehicle on private property in violation of Brookhaven Town Code § 45-6 (as charged in the December 2006 accusatory instrument) are affirmed; and it is
further,
ORDERED that the judgments convicting defendant of causing an obstruction on a public way in violation of Brookhaven Town Code § 38-4 and of storing an unregistered vehicle on private property in violation of Brookhaven Town Code § 45-6 (as charged in the May 2006 accusatory instrument) are reversed, on the law, said accusatory instruments are dismissed, and the fines, if paid, are remitted.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Following a nonjury trial, defendant was convicted of littering and dumping on private property in violation of Brookhaven Town Code § 45-4 (C), causing an obstruction on a public way in violation of Brookhaven Town Code § 38-4, and two charges of storing an unregistered vehicle on private property in violation of Brookhaven Town Code § 45-6 (one charge was filed in May 2006 and the second charge was filed in December 2006).
Pursuant to Brookhaven Town Code § 45-6 an "owner of private property . . . may store not more than one unregistered motor vehicle . . . provided that said motor vehicle is stored in a suitably enclosed location." This court has repeatedly held that an information is jurisdictionally defective if it merely alleges storage for a single specific time and date since storage connotes a sense of permanence in that the item has remained on the property for a prolonged period of time ( see People v Gomes , 11 Misc 3d 142 [A], 2006 NY Slip Op 50734[U] [App Term, 9th 10th Jud Dists 2006]; People v Durao , 3 Misc 3d 134[A], 2004 NY Slip Op 50449[U] [App Term, 9th 10th Jud Dists 2004]). Because the May 2006 accusatory instrument charging defendant with violating Brookhaven Town Code § 45-6 provides only one specific time and date of observation, it failed to show that any unregistered vehicle was stored on the property and, therefore, is jurisdictionally defective. Consequently, said accusatory instrument is dismissed and the $500 fine, if paid, is remitted.
Viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620), we find that it did not establish beyond a reasonable doubt that defendant "cause[d] to be done any act or thing" upon a "public way of the Town of Brookhaven," which was "dangerous to the health, safety or welfare of persons using the same or impair[ed] the public use thereof or obstruct[ed] or tend[ed] to obstruct or render the same dangerous for passage," in violation of Brookhaven Town Code § 38-4. Consequently, the accusatory instrument charging defendant with violating Brookhaven Town Code § 38-4 is dismissed and the $250 fine, if paid, is remitted.
Viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d at 621), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of littering and dumping on private property in violation of Brookhaven Town Code § 45-4 (C) and of storing an unregistered vehicle on private property in violation of Brookhaven Town Code § 45-6 as charged in the December 2006 accusatory instrument. Moreover, said verdicts were not against the weight of the evidence ( see CPL 470.15; People v Danielson , 9 NY3d 342 ; People v Romero , 7 NY3d 633 ; People v Bleakley, 69 NY2d 490; see also People v Lane , 7 NY3d 888 ). Furthermore, we find no basis to modify the sentences imposed thereon by reducing the amount of the fines. We note that defendant's constitutional challenge with respect to Brookhaven Town Code § 45-4 (C), is unpreserved for appellate review and, in any event, lacks merit ( see People v Fischer , 6 Misc 3d 135 [A], 2005 NY Slip Op 50213[U] [App Term, 9th 10th Jud Dists 2005]), as do his remaining contentions.
Accordingly, the judgments convicting defendant of violating Brookhaven Town Code § 45-4 (C) and § 45-6 (as charged in the December 2006 accusatory instrument) are affirmed.
Tanenbaum, J.P., and Iannacci, J., concur.
Molia, J., taking no part.