Opinion
2016–1134 N CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Michelle RHODE, Appellant.
Andrew J. Levitt, New York, for appellant. North Hempstead Town Attorney (Brittney C. Rusell of counsel), for respondent.
Andrew J. Levitt, New York, for appellant.
North Hempstead Town Attorney (Brittney C. Rusell of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
ORDERED that, on the court's own motion, the notice of appeal from a decision of that court dated January 12, 2016 is deemed a valid notice of appeal from the judgment of conviction rendered April 15, 2016 (see CPL 460.10 [6 ] ); and it is further,
ORDERED that the judgment of conviction is affirmed.
Insofar as is relevant to this appeal, following a nonjury trial, defendant was convicted of violating North Hempstead Town Code § 70–220 (A), which provides that it "shall be unlawful for any person to commence work for the erection or alteration of, or to erect, alter or maintain, any building or structure or remove any tree or trees or use any lot or premises for any purpose for which a permit is required until a building, tree removal or use permit has been duly issued upon application therefor," in that defendant had maintained an above-ground pool on her property without a permit. On appeal, defendant argues that she did not need to obtain a permit for her above-ground pool because the pool had been installed in 1976 and had not been altered since that time, and, in 1976, North Hempstead Town Code § 70–220 (A) did not exist and the applicable provisions, sections 10.23 and 10.25 of the 1973 North Hempstead Town Code in effect at that time, did not require a permit.
Contrary to defendant's argument, section 10.23 of the 1973 North Hempstead Town Code provided that the approval of the Health Department (i.e., a permit) had to be obtained prior to installing a pool in a residential district as an accessory structure. Section 10.25 of that Code stated that portable swimming pools of a certain size—and it is uncontroverted that defendant's pool meets the size requirement—"shall not be required to comply with the provisions of Section 10.23 provided" the seven enumerated "conditions are complied with in all respects." It is noted that "[a]n exception to a statute has been distinguished from a proviso in that the exception excludes something from the statute absolutely and by express words in the enacting clause, while a proviso defeats its operation conditionally" (McKinney's Cons Laws of NY, Book 1, Statutes § 211; see People v. Davis , 13 NY3d 17, 31–32 [2009] ; People v. Santana , 7 NY3d 234, 236–237 [2006] ; People v. Kohut , 30 NY2d 183, 187 [1972] ; People v. Bingham , 263 AD2d 611, 611 [1999] ; People v. Adekoya , 50 Misc 3d 99 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Gill , 37 Misc 3d 24, 26 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v. Sylla , 7 Misc 3d 8, 12 [App Term, 2d Dept, 2d & 11th Jud Dists [2005] ). In regard to a proviso, the People need neither plead nor prove the negative in order to make out a prima facie case (see People v. Sylla , 7 Misc 3d at 12 ); instead, a proviso may be raised by the accused as a defense (see People v. Davis , 13 NY3d at 31 ; People v. Santana , 7 NY3d at 237 ). Since former section 10.25 conditionally defeated the approval (i.e., permit) requirement of former section 10.23, it is a proviso and defendant could have used former section 10.25 as a defense by showing that she had satisfied its seven enumerated conditions "in all respects," but she failed to do so.
At trial, the evidence adduced by the People established that, from the time the current North Hempstead Town Code was adopted in 1976 to the present, an above-ground pool has been defined as a structure pursuant to section 70–231 thereof, and that, under section 70–220 (A) thereof, defendant was required to have a permit to maintain her above-ground pool. Defendant presented a witness who had previously owned defendant's property from 1969 to 1988, who testified that she had not altered or changed the pool after she had installed it in 1976. However, defendant presented no evidence that the pool had not been altered any time after 1988. In addition, defendant failed to show that she did not have to obtain approval, or a permit, pursuant to former section 10.23 because she provided no evidence that the seven enumerated conditions of former section 10.25 were "complied with in all respects" at any time after the installation of the pool.
Furthermore, the District Court properly limited defendant's trial attorney's cross-examination of the inspector by sustaining the People's objection to her attorney's question to the inspector regarding whether he knew when the pool had been installed (see People v. Schwartzman , 24 NY2d 241 [1969] ), since the inspector's knowledge of when the pool had been installed would have been only marginally relevant (see People v. Francisco , 44 AD3d 870 [2007] ; see also Delaware v. Van Arsdall , 475 US 673, 679 [1986] ). Nevertheless, the error, if any, was harmless in view of the overwhelming evidence of defendant's guilt, and there was no significant probability that the error contributed to defendant's conviction (see People v. Crimmins , 36 NY2d 230, 241–242 [1975] ). Defendant's remaining contentions lack merit.
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.