People v Gebbia

[*1] People v Gebbia 2012 NY Slip Op 50731(U) Decided on April 25, 2012 District Court Of Nassau County, First District Lerose, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
District Court of Nassau County, First District

The People of the State of New York,

against

Laurie Gebbia, Defendant(s)



00805/10



Hon. Kathleen M. Rice, District Attorney 242 Old Country Road, Mineola, NY 11502, for the Plaintiff

Laurie A. Gebbia, Pro se Defendant, 107 Moore Ave., Oceanside, NY 11572

Douglas J. Lerose, J.

DECISION AFTER HEARING

This criminal action was commenced against the defendant, Laurie A. Gebbia, on the grounds that she violated the Town Code of the Town of Hempstead Chapter 86, Section 9A(1). In the instant case, the defendant was specifically charged with maintaining a structure without proper building permits, to wit: a fence without a permit.

PROCEDURAL HISTORY

The defendant was arraigned and released on her own recognizance and the matter was set down for a trial. A bench trial was held before the Honorable Norman Janowitz on October 5, 2010. In a written decision dated December 9, 2010, the Court found the defendant guilty of violating one count of Chapter 86, Section 9A(1) of the Town Code of the Town of Hempstead and imposed a fine in the sum of $350.00 (the "Decision"). Several post trial orders issued by various judges of the District Court stayed the execution of the judgment.

On April 12, 2011, the defendant submitted a motion alleging that "the judgment of conviction was improperly based upon evidence that was not admitted in my presence at the time of trial and certain omissions and/or proceedings that never occurred in my presence, and the Court's failure to permit me to introduce pertinent evidence at trial, although the record of the trial improperly indicates otherwise" (see ¶ 14 of defendant's Affidavit, dated April 12, 2011). Judge Anzalone directed both parties to appear for a hearing in order to settle the stenographic minutes for appeal purposes. This Court presided over the hearing on March 22, 2012. At the hearing, the defendant raised sixteen separate issues relating to alleged errors and/or omissions including the Court's failure to allow the introduction of "pertinent evidence" at trial. During the Court's inquiry the defendant weighted some of these sixteen issues more critical than others [*2]relative to her appeal. Nonetheless, in rendering this decision, the Court considered all sixteen issues. Additionally, the Court took notice of the defendant's argument, that at trial, Judge Janowitz "would not accept any evidence from me regarding selective prosecution or selective enforcement ... " (see ¶ 15 of defendant's Affidavit, dated April 12, 2011 which references page 15 of the transcript).

CONCLUSIONS OF LAW

Case law sets forth that trial judges be given broad discretion in making evidentiary rulings either precluding or admitting proferred evidence and absent an abuse of that discretion its decision should not be disturbed on appeal (People v. Aska, 91 NY2d 979 [1998]). In this case, the trial judge precluded evidence which defendant sought to admit regarding other residences which were apparently not being cited by the Town. However, whether that evidence was precluded or admitted has little or no basis as to the violation of the defendant's fence. The Court does not find any abuse of discretion by the trial judge on this matter.

During the hearing, the Court specifically asked the People whether it had given the defendant any Rosario material. The Court was informed that the defendant did receive whatever Rosario material the People possessed. While acknowledging the defendant's contention that she never received the Rosario packet, Edward Ra, the People's trial attorney, is quoted as representing to the trial judge, "I have a copy of this file, which is for the Court, as well as the relevant code section. It's a copy of everything that was turned over to the defense. That's our Rosario packet, your Honor" (see Trial transcript, dated October 5, 2010, page 3, lines 12-15). Based upon the dual representations, both at trial and at the March hearing, the Court finds the testimony of Mr. Ra to be credible. Accordingly, the Court concludes that the People satisfied their Rosario obligations by providing said Rosario documentation to the defendant. Furthermore, no evidence or testimony was submitted setting forth any articulable claim that the defendant was deprived of any evidence that would either exonerate or mitigate the charges against her.

Lastly, the Court reviewed the transcript of the trial testimony and the underlying charges. The record does not indicate whether the defendant was present or absent from the courtroom at specific times. In giving the defendant the benefit of the doubt, the Court concludes that the findings overwhelmingly comport with the weight of the evidence. Absent any consent by the parties to remedy errors or deficiencies in the transcript, settlement lies with the trial court (see CPLR §5225[c]). The trial court is the final arbiter of the record (People v. Alomar, 93 NY2d 239 [1999]). Assuming arguendo that the Court were to find that there were errors or omissions as specifically alleged by the defendant, such errors and omissions still would not have an appreciable affect so as to change the decision of the trial court.

Based upon the submitted documentation, pleadings and arguments by the [*3]parties at this hearing on March 22, 2012, the Court finds no reason to modify, correct or conduct any further hearings with regard to the trial transcript, as submitted.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: April 25, 2012