Opinion
2007-1606 S CR.
Decided January 12, 2009.
Appeal from a judgment of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), rendered September 6, 2007. The judgment convicted defendant, after a nonjury trial, of having a yard encroachment in violation of § 85-371 (A) of the Code of the Town of Brookhaven.
Judgment of conviction reversed on the law, fine, if paid, remitted, and accusatory instrument dismissed.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
Defendant was charged under a provision of the Code of the Town of Brookhaven that reads, in relevant part, as follows:
"§ 85-371 Yard encroachments.
Every part of a required yard shall be open and unobstructed by any building or structure from its lowest point upwards, except as follows:
A.Accessory buildings and structures are permitted in the rear yards in those districts in which they are specifically permitted."
The accusatory instrument alleged that defendant violated this provision by having a shed "in the southwest corner of the required front yard along Christian Avenue."
It was not disputed at trial that defendant's property was located on the corner of Woodfield Road and Christian Avenue, that the main entrance to the house was on Woodfield Road, and that the shed was, as the accusatory instrument alleged, located on a portion of the property bounded by Christian Avenue. The People relied on the following provision of the Code of the Town of Brookhaven:
"§ 85-373 Corner and through lots.
Every corner lot . . . shall have a front yard on each street."
Their theory was that the portion of defendant's property on which the shed was located that is, the portion on Christian Avenue was, under this provision, a "front yard."
As defendant pointed out in his motion for a trial order of dismissal, however, and as he emphasizes on appeal, the Code of the Town of Brookhaven also contains the following provision:
"§ 85.1 Definitions; word usage.
* * *
B. For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein:
* * *
YARD, FRONT
An open unoccupied space on the same lot with a building or structure, extending the full width of the lot and situated between the street line and the front line of the building or structure projected to the side lines of the lot. The depth of the front yard shall be measured between the front line of the building or structure and the street line. In the event that the principal structure is located on a corner lot, that portion of said corner lot which has frontage upon the street which the main entrance of the building faces, as shown by plans or physical layout, shall be deemed the front thereof; that portion of the corner lot having frontage upon another street shall be deemed a side yard, but such side yard shall be measured as and have a depth equal to a front yard . . ." (emphasis added).
We agree with defendant that, in light of this definition, the evidence was legally insufficient to establish that the shed was in a required front yard.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. In view of our disposition, we do not reach the remaining issues raised by defendant.
Rudolph, P.J., Molia and Scheinkman, JJ., concur.