Opinion
2007-633 W CR.
Decided October 30, 2008.
Appeal from a judgment of the Justice Court of the Town of Yorktown, Westchester County (William C. Gerstenzang, J.), rendered March 28, 2007. The judgment convicted defendant, after a nonjury trial, of storing a commercial vehicle on residential property without a permit and of storing more than one unregistered or abandoned motor vehicle on residential property without being screened from view.
Judgment of conviction modified on the facts by vacating the conviction for storing more than one unregistered or abandoned motor vehicle on residential property without being screened from view, dismissing that count of the information and directing that the fine imposed upon said conviction, if paid, be remitted; as so modified, affirmed.
PRESENT: RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ.
We find the verdict with respect to the count charging defendant with storing more than one unregistered or abandoned motor vehicle on his residential property without being screened from view (Town of Yorktown Code § 277-3 [A]) to be against the weight of the evidence ( People v Danielson, 9 NY3d 342, 349), in that the prosecution's witnesses did not establish the elements of said count beyond a reasonable doubt. Although defendant admitted that one vehicle was unregistered, the People proved only that the remaining vehicles in question lacked a front license plate, an insufficient basis to establish beyond a reasonable doubt that any one of those vehicles was unregistered ( cf. Vehicle and Traffic Law §§ 250, 402). We note that even if the People proved that the vehicles were in violation of Vehicle and Traffic Law § 402, such fact alone would not render the vehicles abandoned vehicles within the definitions provided by Town of Yorktown Code § 277-2. The definitions clearly contemplate vehicles that are mechanically unusable or if usable, unused in fact, and not vehicles with such defects as would violate a provision of the Vehicle and Traffic Law unrelated to the registration provisions found therein.
We affirm defendant's conviction of the count charging defendant with storing a commercial vehicle on residential property without a permit (Town of Yorktown Code § 300-62 [B]). The People proved, and defendant admitted, that a large storage container, a "commercial vehicle" within the definition of § 300-62 (A), remained on defendant's premises and that defendant had no permit for the storage or placement of such a container on his property. Defendant failed to meet his burden of establishing that the container's storage was legal "prior to the enactment of the prohibitive . . . ordinance" ( Matter of Keller v Haller, 226 AD2d 639, 640; see Town of Yorktown Code §§ 300-170, 300-171; Spilka v Town of Inlet , 8 AD3d 812 , 814; 4 Rathkopf, Zoning and Planning § 65:33; 1 Salkin, New York Zoning Law and Practice § 10:12 [4th ed]).
Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.