People v Palmisano (Frank)

[*1] People v Palmisano (Frank) 2004 NY Slip Op 50249(U) Decided on April 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-917 S CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

FRANK PALMISANO, Appellant.

Appeal by defendant from a judgment of the District Court, Suffolk County

(P. Barton, J.), rendered June 9, 2003, convicting him of violating section 213-129 of the Code of the Town of Babylon and imposing sentence.

Judgment of conviction unanimously affirmed.

In the case at bar, defendant was convicted of occupying the subject premises as a used car business in an "E" business zone without the required approval of the Board of Appeals (Code of the Town of Babylon § 213-129). The evidence adduced upon the trial established that no such use was permitted by the Code until 1983, at which time the Code was amended to allow for such use upon issuance of a special exception by the Board of Appeals. Defendant, while acknowledging that he did not apply to the Board of Appeals for an exception, maintains that the certificate of occupancy dated June 21, 1976 provided for occupancy as a used car lot. However, the certificate of occupancy issued on that date contained the additional notation "Board of Appeals #625" which referred to the Board's approval of an application by defendant's predecessor in title for permission to use the premises as a used car lot. The minutes of the Board meeting relative to said application reveal that the use was approved on a temporary basis for one year. In 1977, a second application by defendant's predecessor in title was approved for an additional one year period. Thus, authorization to use the premises as a used car lot ceased in 1978. In view of the foregoing, the People established defendant's guilt beyond a reasonable doubt.
Decision Date: April 01, 2004