Judge: Decision Reported Below: App Term, 2d Dept, 9th & 10th Jud Dists: 44 Misc 3d 20 (Nassau)

With respect to the information charging defendant with violating Brookhaven Town Code § 82–10(A), we note that where a local ordinance requires an inspection of premises in order to obtain a rental permit or, as in this case, a rental registration, a defendant is aggrieved only when the defendant actually applies for such a permit or registration, or where the defendant brings an action for a judgment declaring that the ordinance is unconstitutional (see Sokolov v. Village of Freeport, 52 N.Y.2d 341, 346 [1981] ; ATM One, LLC v. Incorporated Vil. of Hempstead, 91 AD3d 585, 587 [2012] ). Here, defendant was charged with a violation of such an ordinance, but he did not apply for a rental registration, was not required to submit to a search, and did not bring an action for a judgment declaring Brookhaven Town Code § 82–10(A) unconstitutional (see Matter of Cappon v. Carballada, 109 AD3d 1115, 1117 [2013] ; Matter of Burns v. Carballada, 101 AD3d 1610, 1612 [2012] ; People v. LaRoche, 44 Misc.3d 20, 22 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Consequently, defendant was not aggrieved by any alleged constitutional infirmity in the subject provision.

On appeal, defendant objects that a warrantless search by a Town of Brookhaven building inspector at 36 Julia Circle violated her Fourth Amendment rights, that she did not receive prior notice of the charges as provided by the Code, that Code sections 45–4, 45–6, and 82–3(F) are unconstitutionally vague as applied, and that the District Court judge abused her discretion in declining to recuse herself at the second and third trials. While a town, municipality or other such entity may not condition the issuance of a rental permit on the owner's consent to a warrantless inspection (Pashcow v. Town of Babylon, 53 N.Y.2d 687, 688 [1981] ; Sokolov v. Village of Freeport, 52 N.Y.2d 341, 346 [1981] ; People v. LaRoche, 44 Misc.3d 20 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ), the search herein did not arise in the context of defendant's application for a rental permit. Further, she was not aggrieved by any alleged constitutional violation.

On appeal, defendant objects that a warrantless search by a Town of Brookhaven building inspector at 36 Julia Circle violated her Fourth Amendment rights, that she did not receive prior notice of the charges as provided by the Code, that Code sections 45-4, 45-6, and 82-3 (F) are unconstitutionally vague as applied, and that the District Court judge abused her discretion in declining to recuse herself at the second and third trials. While a town, municipality or other such entity may not condition the issuance of a rental permit on the owner's consent to a warrantless inspection (Pashcow v Town of Babylon, 53 NY2d 687, 688 [1981]; Sokolov v Village of Freeport, 52 NY2d 341, 346 [1981]; People v LaRoche, 44 Misc 3d 20 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]), the search herein did not arise in the context of defendant's application for a rental permit. Further, she was not aggrieved by any alleged constitutional violation.

ce has been introduced in numerous driving while intoxicated cases (see People v Jacquin, 71 NY2d 825 [1988]; People v Powell, 95 AD2d 783, 785 [1983]; People v Belakh, 21 Misc 3d 136[A], 2008 NY Slip Op 52215[U] [App Term, 2d & 11th Jud Dists 2008]; People v Borzon, 45 Misc 3d 1217[A], 2014 NY Slip Op 51613[U], * 6-8 [Sup Ct, Bronx County 2014]; People v Paulino, 24 Misc 3d 832, 833-837 [Sup Ct, Bronx County 2009]). While videotape evidence, if in the possession of the People, must be turned over to the defense (see People v Sweeney, 18 Misc 3d 1134[A], 2008 NY Slip Op 50304[U] [Albany City Ct 2008]; People v Karns, 130 Misc 2d 247 [Rochester City Ct 1985]), defendant cites no case that requires the People to present videotape evidence in driving while intoxicated cases to establish a prima facie case, and the lack of videotape evidence in this case did not render the police testimony incredible as a matter of law, a claim which is, in any event, unpreserved for appellate review (see People v LaRoche, 44 Misc 3d 20, 23 [App Term, 9th & 10th Jud Dists 2014]; People v Schwartz, 33 Misc 3d 142[A], 2011 NY Slip Op 52226[U] [App Term, 9th & 10th Jud Dists 2011]).