Opinion
2003-200 PCR.
Decided July 1, 2004.
Appeal by defendant from a judgment of the Justice Court, Town of Carmel, Putnam County (J. Spofford, J.), rendered January 27, 2003, convicting him of violating one count each of sections 63-8 (A) (8), 63-9 and 63-38 (A) of the Code of the Town of Carmel and imposing sentence.
Judgment of conviction unanimously modified on the law by vacating the conviction of violating section 63-9 of the Code of the Town of Carmel, dismissing said count of the information, and by reducing the fines imposed on the remaining two counts to $250 per count; as so modified, affirmed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Following the trial, the jury returned a verdict of guilty on counts one, five and eight (sometimes referred to as count seven) of the amended information. Thereafter, defendant was sentenced to a fine of $52,000 as to count one and $51,000 as to each of the remaining two counts. The court based said fines on a determination that each week the violations continued constituted a separate violation pursuant to section 63-41 (A) of the Code of the Town of Carmel.
The first count charged defendant with violating section 63-9 of the code in that defendant, on November 17, 1999, did use lot 40 "for a use not allowed by right or as a conditional use in the R-40/10 district. To wit: Defendant was using land for other than a residence, private beach, wharf, dock, boathouse or bathhouse." Inasmuch as said count of the amended information failed to contain factual allegations to the effect that the subject lot was located in an R-40/10 district, the count is jurisdictionally defective in that it failed to contain sufficient factual allegations establishing every element of the offense charged and defendant's commission thereof ( see CPL 100.40, 100.15; see also People v. Alejandro, 70 NY2d 133).
The remaining two counts alleged violations on lot 41. Count five alleged that defendant, on November 17, 1999, violated section 63-8 (A) (8) of the Code of the Town of Carmel in that he constructed "a new wharf and wood walkway" therein "without first obtaining site plan approval from the planning board." Count eight alleged that defendant, on November 17, 1999, violated section 63-38 (A) of said code in that he constructed, enlarged or structurally altered "a wood walkway and a new wharf or dock without obtaining a building permit from the Building Inspector." The testimony at trial established that the lot in issue (lot 41) together with lot 42 were purchased by defendant from one "Arty" McDonald and were referred to as the McDonald property. Defendant testified that at the time of purchase, the wharf (docks) and walkway were in disrepair. He further stated that prior to undertaking the repairs, he inspected the property and realized that the entire wharf and walkway needed to be replaced. As a result, the entire dock and a significant portion, if not all, of the walkway was removed and a completely new wharf constructed. Since the work, by defendant's own testimony, encompassed more than a repair, he was required to obtain both site plan approval and a building permit prior to construction. Since defendant admittedly did not obtain same, the jury's finding as to said counts were proper.
The fines imposed, based on continuing violations, were improper. Absent an allegation that each week would constitute a separate count, the accusatory instrument should be treated as charging only one violation as to each count ( People v. Fremd, 41 NY2d 372). Section 63-41 (A) of the Code of the Town of Carmel provides, in part, that each offense is subject to a fine not to exceed two hundred fifty dollars ($250) and that each week's continued violation shall constitute a separate violation. Inasmuch as the amended information only charged violations on November 17, 1999 and did not provide for continuing violations, defendant was subject to a maximum fine of two hundred fifty dollars ($250) on each of the remaining counts.
Finally, we note that the other issues raised on this appeal were considered and found to be without merit.