People v Russell Place Realty Co., Inc.

[*1] People v Russell Place Realty Co., Inc. 2012 NY Slip Op 51299(U) Decided on June 29, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., NICOLAI and LaCAVA, JJ
2010-824 N CR.

The People of the State of New York, Respondent,

against

Russell Place Realty Company, Inc., Appellant, -and- Angelo Barbaruolo, Defendant.

Appeal from a judgment of the City Court of Glen Cove, Nassau County (Joseph D. McCann, J.), rendered March 8, 2010. The judgment, insofar as appealed from, convicted defendant Russell Place Realty Company, Inc., after a nonjury trial, of failing to maintain a retaining wall and sentenced it to a fine of $45,000.

ORDERED that the judgment of conviction, insofar as appealed from, is modified, on the law and as a matter of discretion in the interest of justice, by reducing the fine imposed upon defendant Russell Place Realty Company, Inc. to $5,000; as so modified, the judgment of conviction, insofar as appealed from, is affirmed.

Russell Place Realty Company, Inc. (defendant) and another were charged in an [*2]information with violating, among other things, § 302.7 of the New York State Property Maintenance Code (Property Maintenance Code) and § 168-43 (B) of the Glen Cove City Code on March 29, 2007, "in that a high wood retaining wall located in rear of defendants' subject premises, is positioned haphazardly on a dirt foundation, with many pieces of wood missing and a large section of the dirt foundation is uncovered, is in serious need of repair and/or replacement, and constitutes a safety concern."

At the close of a nonjury trial, defendant's counsel moved to dismiss the charge on the ground that Property Maintenance Code § 302.7 was superseded by the Glen Cove City Code § 280-52 (the Slope Law). The City Court denied the motion, convicted defendant of violating Property Maintenance Code § 302.7 and imposed a fine of $45,000.

The accusatory instrument was facially sufficient. The allegations set forth nonhearsay facts of an evidentiary nature which provide reasonable cause to believe and establish, if true, that the wall was not "structurally sound" or "in good repair," in violation of Property Maintenance Code § 302.7 (see CPL 100.40 [1] [b], [c]). These allegations are also sufficiently evidentiary, and they are adequately detailed to prevent defendant from being tried twice for the same offense (see People v Kalin, 12 NY3d 225, 230 [2009]; People v Gezari, 32 Misc 3d 133[A], 2011 NY Slip Op 51444[U] [App Term, 9th & 10th Jud Dists 2011]; People v Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50222[U] [App Term, 9th & 10th Jud Dists 2011]).

Defendant's argument that the information was facially insufficient for failing to set forth the method by which the notice of violation was delivered to defendant is without merit, as this is not an element of the offense charged (see CPL 100.40 [1]).

Contrary to defendant's contention, the Slope Law does not supersede Property Maintenance Code § 302.7. The Glen Cove City Code expressly adopts the Property Maintenance Code (see Glen Cove City Code §§ 111-2, 111-3). We note that, in the event of a conflict, the Property Maintenance Code supersedes the local law (see Executive Law § 373 [3]; People v Oceanside Institutional Indus., Inc., 15 Misc 3d 22 [App Term, 9th & 10th Jud Dists 2007]). Moreover, Property Maintenance Code § 302.7, which requires only that accessory structures, such as walls, be kept in good repair, is not in conflict with the restrictions the Slope Law places on regrading certain property.

Defendant's contention that Glen Cove City Code § 136-16 supersedes Property Maintenance Code § 302.7 is unpreserved and also without merit. Consistent with the Property Maintenance Code, Glen Cove City Code § 136-16, the local ordinance governing retaining walls, mandates that retaining walls be kept in good condition and repair. Furthermore, this ordinance plainly discredits defendant's argument that the Slope Law prevents him from repairing the wall.

While the allegations contained in the supporting deposition suggest an ongoing violation, the information charged defendant only with violating the Property Maintenance Code on "March 29, 2007." Thus, the City Court could impose a fine upon the corporate defendant in an amount not to exceed the maximum imposable fine for the one day of violation charged (see People v Fremd, 41 NY2d 372 [1977]). As the penalties for violating the Property Maintenance Code, as set forth in Executive Law § 382 (2), contain no special corporate fine and provide for a maximum term of imprisonment exceeding three months (see People v Causeway Constr. Corp., [*3]169 Misc 2d 70 [App Term, 1st Dept 1996]), pursuant to Penal Law § 80.10 (1) (b), the
maximum fine imposable upon the corporate defendant was $5,000. Accordingly, we modify the judgment, insofar as appealed from, by reducing the fine imposed to $5,000.

Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: June 29, 2012