Opinion
2019-1014 RO CR
10-21-2021
The PEOPLE of the State of New York, Respondent, v. Naftali KLEIN, Appellant, and Frieda Klein, Defendant.
Sussman & Associates (Michael H. Sussman of counsel), for appellant. Feerick Nugent & MacCartney PLLC (John J. Kolesar, III and Robert Zitt of counsel), for respondent.
Sussman & Associates (Michael H. Sussman of counsel), for appellant.
Feerick Nugent & MacCartney PLLC (John J. Kolesar, III and Robert Zitt of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.
ORDERED that the judgments of conviction are affirmed.
In an information, Naftali Klein (defendant) was charged with violating a stop work order (Code of the Village of Pomona § 130-22) (Code) and, in a separate information, he was charged with four counts of violating a stop work order (id. ). After a nonjury trial, defendant was found guilty of the aforementioned charges.
At the trial, the People established that defendant had violated a stop work order when he had construction work performed on the roof of his house and by workers moving plywood into the house. The testimony adduced at trial established that defendant was permitted to install only a tarp on the roof without being in violation of the stop work order issued by the Village of Pomona. Defendant testified that he and some workers initially installed a tarp on the roof to protect the property from rain water damage, but it blew off. He installed plywood and shingles on the roof to protect the property. Insofar as is relevant to this appeal, defendant was found guilty of the aforementioned charges.
On appeal, defendant contends, among other things, that the People failed to disprove his justification defense (see Penal Law §§ 35.00, 35.05 ) beyond a reasonable doubt.
Defendant's contention, that the People failed to disprove his justification defense beyond a reasonable doubt, is unpreserved for appellate review as he did not raise the issue at trial (see CPL 470.05 [2] ; People v Gray , 86 NY2d 10, 19 [1995] ; People v Ziffer , 43 Misc 3d 140[A], 2014 NY Slip Op 50809[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). In any event, viewed in the light most favorable to the prosecution (see People v Contes , 60 NY2d 620 [1983] ), the evidence was legally sufficient to prove defendant's guilt of the charges and to disprove defendant's justification defense beyond a reasonable doubt (see Penal Law §§ 25.00, 35.00 ; People v Danielson , 9 NY3d 342, 349 [2007] ; People v McManus , 67 NY2d 541, 546 [1986] ). Defendant failed to establish that the injury he claimed was "about to occur" was not "by reason of a situation occasioned or developed through no fault" of his own ( Penal Law § 35.05 [2] ), as he had installed the tarp which blew off the roof. While defendant could have simply reinstalled the tarp in a more secure manner to prevent any damage to his property without violating the stop work order, he did not choose that option.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] ; People v Danielson , 9 NY3d at 342 ), we accord great deference to the factfinder's opportunity at trial to view witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane , 7 NY3d 888, 890 [2006] ). Upon our review of the record, we are satisfied that the verdicts finding defendant guilty of violating the stop work orders without justification were not against the weight of the evidence (see People v Romero , 7 NY3d 633 [2006] ).
Defendant waived review of the denial of his motion for a trial order of dismissal regarding the validity of the stop work order made at the close of the People's case, as he did not renew the motion after presenting evidence (see People v Hines , 97 NY2d 56, 61 [2001] ; People v Mackey , 28 Misc 3d 137[A], 2010 NY Slip Op 51462[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).
Accordingly, the judgments of conviction are affirmed.
RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.