People v Fischer (John)

[*1] People v Fischer (John) 2006 NY Slip Op 51176(U) [12 Misc 3d 133(A)] Decided on June 6, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2004-1565 S CR. NO. 2004-1565 S CR

The People of the State of New York, Respondent,

against

John Fischer, Appellant.

Appeal from an amended judgment of the District Court of Suffolk County, Sixth District (Toni Bean, J.), rendered September 16, 2004. The amended judgment found defendant in violation of a conditional discharge and resentenced him to a fine of $1,500.

Amended judgment of conviction modified as a matter of discretion in the interest of justice by reducing the fine imposed to $250; as so modified, affirmed.

Defendant originally pled guilty to violating section 45-4 (C) of the Code of the Town of Brookhaven and received a conditional discharge. Following a subsequent hearing, he was found to be in violation of said sentence.

A review of the record indicates that defendant's failure to comply with the terms of the conditional discharge was established beyond a reasonable doubt. However, under the circumstances, the fine imposed was excessive and should be reduced as indicated above.

The other issues raised on this appeal have been considered and found to be without merit.

Rudolph, P.J., and Tanenbaum, J., concur.

McCabe, J., dissents in part and concurs in part in a separate memorandum.

McCabe, J., dissents in part and concurs in part and votes to affirm the amended judgment of conviction in the following memorandum:

In the case at bar, defendant, in accordance with a negotiated plea, was convicted of violating section 45-4 (C) of the Code of the Town of Brookhaven and sentenced to a conditional [*2]discharge, i.e., that within 15 days, he remove and maintain the premises free of litter. Following a hearing, defendant was found to be in violation of the terms of the conditional discharge in that he failed to maintain the premises free of litter and was resentenced to a fine of $1,500.

At the hearing, the Town Inspector testified that she visited the premises and found litter and debris along the side and front of the premises. Photographs taken of the premises at the time of her inspection were admitted into evidence. Said photographs showed debris along one side of the house, debris, including a broken down chair and bike, along the other side of the house, garbage and cartons strewn along the curb at the front of the house, together with a garbage pail. Behind the garbage pail was a broken tricycle and an aluminum pan. Behind that, approximately 4 to 5 feet from the curb, were a sofa, mattresses and a blue platform. Piled in front of the garage were at least three plastic lawn and leaf-sized bags which appeared to be filled with garbage. In light of defendant's failure to comply with the terms of the conditional discharge and given the fact that the sentence of a fine of $1,500 was within the limitations permitted by the ordinance (see Code of the Town of Brookhaven § 45-12 [A]), it is my opinion that the sentence imposed was not excessive. In reaching this result, I note that defendant, on June 12, 2003, had previously been convicted of violating the identical section of the Code of the Town of Brookhaven. Defendant was sentenced at that time to a fine of $2,000. On appeal to this court, the judgment of conviction was modified by reducing the fine to $250 (see People v Fischer, 6 Misc 3d 135[A], 2005 NY Slip Op 50213[U] [App Term, 9th & 10th Jud Dists]). Defendant's conduct does not warrant this court extending leniency to him for a second time.
Decision Date: June 6, 2006