People v Lubrano (Thomas)
Annotate this CaseDecided on October 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2013-860 S CR
The People of the State of New York, Respondent,
against
Thomas Lubrano, Appellant.
Appeal from an amended judgment of conviction of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), rendered January 31, 2013. The amended judgment, following a hearing on a declaration of delinquency dated January 12, 2012, revoked so much of a sentence previously imposed as sentenced defendant to a conditional discharge, upon a finding that defendant had violated the terms thereof, and resentenced defendant, upon his conviction of violating Brookhaven Town Code § 82.3, to pay a $2,000 fine and to another conditional discharge, with the requirement that he repair his premises within 30 days.
ORDERED that the amended judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new hearing on the declaration of delinquency dated January 12, 2012.
Following a nonjury trial in March 2009, defendant was convicted of violating Brookhaven Town Code § 82-3 ("Neighborhood preservation requirements") and was sentenced to pay a $250 fine and to a "conditional discharge to fix the items that are in disrepair" at his premises by May 14, 2009. A declaration of delinquency was filed against defendant in July 2009. In September 2009, following a delinquency hearing, the District Court revoked the sentence of conditional discharge, upon a finding that defendant had violated the conditions thereof, and resentenced defendant to pay an additional $600 fine and to another conditional discharge, with the requirement that he repair his premises by October 14, 2009. Defendant appealed from the foregoing judgment of conviction and amended judgment of conviction, which judgment and amended judgment were affirmed by decision and order of this court dated June 17, 2011 (31 Misc 3d 152[A], 2011 NY Slip Op 51133[U]). Thereafter, defendant's premises was re-inspected by a Town of Brookhaven building inspector, after which a declaration of delinquency was filed against defendant in June 2011. By order dated August 18, 2011, following a delinquency hearing, the District Court found that defendant had violated the terms of the conditional discharge, revoked so much of the prior sentence as imposed the conditional discharge, and resentenced defendant to pay an additional $500 fine and to another conditional discharge, with the requirement that defendant repair the premises within 45 days.
Defendant appealed from the August 2011 amended judgment of conviction. By decision and order on motion of this court dated August 8, 2012, execution of the August 2011 amended judgment was stayed pending the determination of the appeal, on the condition that the appeal be perfected by October 5, 2012. Defendant timely perfected the appeal and, by decision and order dated October 29, 2013 (41 Misc 3d 135[A], 2013 NY Slip Op 51878[U]), this court affirmed [*2]the August 2011 amended judgment.
On October 5, 2011, a Town of Brookhaven building inspector re-inspected defendant's premises and observed that the conditions of the conditional discharge issued in August 2011 had not been met, and a declaration of delinquency dated January 12, 2012 was filed against defendant. A delinquency hearing, regarding the conditional discharge imposed by the August 2011 amended judgment of conviction, was held on January 31, 2013. Defendant refused to participate in the hearing, arguing that the hearing was improper because the Appellate Term, Ninth and Tenth Judicial Districts, had stayed the execution of the August 2011 amended judgment pending the determination of the appeal therefrom. The District Court disagreed, and, after defendant left, the hearing continued in his absence. Upon the completion of the hearing, the District Court found that defendant had violated the terms of the conditional discharge, revoked so much of the prior sentence as had imposed the conditional discharge, and resentenced defendant to pay a $2,000 fine and to another conditional discharge, with the requirement that defendant repair the premises within 30 days.
On appeal, defendant contends, among other things, that since this court had issued a stay pending the determination of his prior appeal, the January 2013 amended judgment of conviction is improper. We agree.
This court's August 8, 2012 decision and order on motion stayed, pending the determination of the prior appeal, execution of the August 2011 amended judgment of conviction, which included the conditional discharge requiring defendant to repair his premises within 45 days of the August 2011 amended judgment. The prior appeal was determined by decision and order dated October 29, 2013, which affirmed the August 2011 amended judgment. Although there was no stay pending when defendant's premises were re-inspected in October 2011, the stay was in effect when the January 2013 hearing was held. Consequently, the January 2013 amended judgment of conviction is reversed and the matter is remitted to the District Court for a new hearing on the January 12, 2012 declaration of delinquency.
Iannacci, J.P., Marano and Garguilo, JJ., concur.
Decision Date: October 07, 2014
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