People v Baumgarten (Barbara)

[*1] People v Baumgarten (Barbara) 2012 NY Slip Op 51980(U) Decided on October 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MOLIA and LaCAVA, JJ
2010-1126 S CR.

The People of the State of New York, Respondent,

against

Barbara A. Baumgarten, Appellant.

Appeal from judgments of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered May 20, 2010. The judgments convicted defendant, upon jury verdicts, of one charge of violating Brookhaven Town Code § 16-4 and three charges of violating Brookhaven Town Code § 16-3, respectively.

ORDERED that the judgments convicting defendant of violating Brookhaven Town Code § 16-3 are reversed, on the law, the accusatory instruments charging those offenses are dismissed, and the fines and surcharges imposed thereon, if paid, are remitted; and it is further,

ORDERED that the judgment convicting defendant of violating Brookhaven Town Code § 16-4 is affirmed.

Following a jury trial, defendant was convicted of one charge of violating Brookhaven Town Code § 16-4 and three charges of violating Brookhaven Town Code § 16-3. On appeal, defendant contends, among other things, that the accusatory instruments are defective, and that the District Court improperly denied her motion to suppress the search warrant, improperly refused to allow her to file a written motion for discovery demands on the eve of trial, improperly restricted her cross-examination of a witness, and improperly denied her application to subpoena a witness.

Brookhaven Town Code § 16-3 prohibits "buil[ding], install[ing], enlarg[ing] or alter[ing]" any wall, structure, plumbing, building or part thereof without obtaining a proper permit therefor. The factual portions of the informations charging defendant with violating Brookhaven Town Code § 16-3 describe how the premises had been converted and altered into apartments. These allegations, however, even if given a "reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 [2004]), do not "establish, if true" (CPL 100.40 [1] [c]), any "buil[ding], install[ing], enlarg[ing] or alter[ing]" of the subject property by defendant (Brookhaven Town Code § 16-3; see People v Jones, 9 NY3d 259, 262 [2007]; People v Alejandro, 70 NY2d 133, 134-135 [1987]). The informations fail to allege that the conversion took place while defendant owned the property (People v Savino, 32 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2011]; People v M. Santulli, LLC, 28 Misc 3d 136[A], 2010 NY Slip Op [*2]51449[U] [App Term, 9th & 10th Jud Dists 2010]; People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010]; see People v Caravousanos, 2 Misc 3d 7, 10 [App Term, 9th & 10th Jud Dists 2003]; People v Cullen, 195 Misc 2d 692, 695 [App Term, 9th & 10th Jud Dists 2003]). Consequently, we find that the informations charging defendant with violating Brookhaven Town Code § 16-3 are jurisdictionally defective.

However, the information charging defendant with violating Brookhaven Town Code § 16-4 alleges that the basement was occupied as an apartment in contravention of the certificate of occupancy. This allegation was sufficiently evidentiary to support the elements of the offense charged (see CPL 100.15 [3]; People v Dumas, 68 NY2d 729 [1986]).

Defendant's conclusory allegations in support of her motion to suppress the search warrant failed to raise a factual issue that would require a hearing (see CPL 710.60 [3]) and, thus, we find that the District Court properly denied the motion. Defendant's motion for discovery, made on the eve of trial, was untimely (see CPL 255.20 [1]). Since defendant failed to show good cause for her failure to timely make the motion (see CPL 255.20 [3]), the District Court properly determined that defendant had waived her right to discovery (see e.g. People v Lawrence, 64 NY2d 200, 206 [1984]; People v De Vivo, 282 AD2d 770, 772 [2001]; People v Lopez [Salvatore], 197 AD2d 594 [1993]). In addition, defendant's contention that the court improperly limited the scope of her cross-examination of the town inspector is unpreserved for appellate review, as defendant failed to object at trial (see CPL 470.05). In any event, we note that the court did not improperly exercise its broad discretion over the nature and extent of cross-examination (see People v Schwartzman, 24 NY2d 241 [1969]) by restricting questions which threatened to mislead the jury (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; People v Francisco, 44 AD3d 870 [2007]). Moreover, inasmuch as defendant failed to show that the proposed testimony of her witness was relevant, material and noncumulative, the court properly denied her application for a subpoena.

To the extent that defendant's appellate contentions raise a challenge to the legal sufficiency of the evidence, such challenge is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), we find that defendant's conviction of violating Brookhaven Town Code § 16-4 was established beyond a reasonable doubt. The evidence adduced at trial showed that, on February 8, 2008, the basement of defendant's premises was occupied/used as a habitable space and that the certificate of occupancy did not authorize such use. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we are satisfied that the verdict convicting defendant of violating Brookhaven Town Code § 16-4 is not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]). Defendant's remaining contentions lack merit.

Accordingly, the judgments convicting defendant of violating Brookhaven Town Code § 16-3 are reversed and the accusatory instruments charging those offenses are dismissed, and the judgment convicting defendant of violating Brookhaven Town Code § 16-4 is affirmed.

Iannacci, J.P., Molia and LaCava, JJ., concur.
Decision Date: October 10, 2012