People v Halpern (Howard)

[*1] People v Halpern (Howard) 2006 NY Slip Op 51197(U) [12 Misc 3d 134(A)] Decided on June 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1044 N CR.

The People of the State of New York, Respondent,

against

Howard C. Halpern, Appellant.

Appeal from judgments of the Justice Court of the Village of Great Neck Estates, Nassau County (Harold M. Hoffman, J.), rendered July 26, 2005. The judgments convicted defendant, after a nonjury trial, of violating sections 95-5 (A) and 95-5 (O) (1) of the Code of the Village of Great Neck Estates.

Judgments of conviction reversed on the law, accusatory instruments dismissed and fines, if paid, remitted.

The accusatory instruments in the case at bar charged defendant with violating sections 95-5 (A) and 95-5 (O) (1) of the Code of the Village of Great Neck Estates in that, at the time and date alleged, there were workmen on the premises installing a brick/stone pathway without having a construction permit and in violation of a stop work order. Section 95-5 (A) (1) of the Code provides that a permit is required for the construction, erection or alteration of a building, structure, driveway or parking area. Section 95-5 (O) (1) permits a Building Inspector to issue a stop work order only if he is satisfied that work being performed for which a permit has been issued is contrary to the Code and/or permit. Since the installation of a brick/stone pathway does not constitute construction, erection or alteration of a building, structure, driveway or parking area, a permit was not required. As a permit was not required, the stop work order as to the installation of the pathway was ineffective (see People v Lewin, 11 Misc 3d 131[A], 2006 NY Slip Op 50316[U] [App Term, 9th & 10th Jud Dists]). In view of the foregoing, the judgments of conviction must be reversed and the accusatory instruments dismissed as the factual parts thereof failed to allege violations of the offenses charged (see CPL 100.40 [1]). In any event, we note that the imposition of the maximum fines permitted, $2,500 per offense, was unduly harsh.

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur. [*2]
Decision Date: June 22, 2006