Opinion
570490/08
04-19-2012
People Respondent, v. Antonio Tanco, Defendant-Appellant.
PRESENT: , J.P., Shulman, Hunter, Jr., JJ
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Richard Ross, JHO), rendered June 16, 2008, after a nonjury trial, convicting him of violating New York City Administrative Code sections 20-465[b] and 20-465[e], and imposing sentence.
Per Curiam.
Judgment of conviction (Richard Ross, JHO), rendered June 16, 2008, reversed, on the law and on the facts, summonses dismissed, and fine, if paid, remitted.
The police testimony elicited at the truncated trial of this Summons Part prosecution showed that defendant was observed selling jewelry from a display table that was located "about eight feet within the crosswalk" at a specified location. With respect to the length of the table (or tables), the officer provided the following rough estimate: "The table is generally two tables about four feet long put together, which —— I think they are five feet long put together. Longer." The officer's testimony was, at best, ambiguous as to the size and location of defendant's vending stand and, upon our independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), was insufficient to establish beyond a reasonable doubt that defendant "occup[ied] more than eight linear feet of public space parallel to the curb in the operation of a vending business" (Administrative Code of City of NY § 20-465[b]) or that defendant "vend[ed] within ... ten feet of any driveway, any subway entrance or exit, or any corner" (Administrative Code of City of NY § 20-465[e]).
An alternative basis for reversal is found in the trial court's failure to make any inquiry whatsoever to determine whether defendant's absence from the trial proceedings was deliberate (see People v Brooks, 75 NY2d 898, 899 [1990]; People v Carroll, 196 AD2d 546 [1993], lv denied 82 NY2d 848 [1993]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.