People v Fischer (John)

[*1] People v Fischer (John) 2005 NY Slip Op 50213(U) Decided on February 22, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2003-1599 S CR

The People of the State of New York (Town of Brookhaven), Respondent,

against

John A. Fischer, Appellant.

Appeal by defendant from a judgment of the District Court, Suffolk County

(P. Hensley, J.), rendered June 12, 2003, convicting him of violating section 45-4 (C) of the Brookhaven Town Code and imposing sentence of a fine of $2,000 and a conditional discharge.

Judgment of conviction unanimously modified as a matter of discretion in the interest of justice by reducing the fine imposed to $250, as so modified, affirmed.

Defendant herein was charged and convicted of violating section 45-4 (C) of the Brookhaven Town Code, in that, as owner, he did not maintain the property free of litter, as there existed a large pile of scrapwood near a shed. Defendant, in an
omnibus motion, challenged the constitutionality of the ordinance, the legal sufficiency of the information, sought suppression of the observations of the Town Sanitation Officer, and dismissal due to violation of CPL 30.30. After reviewing said issues, we find that the ordinance is not unconstitutionally vague as applied or on its face
(see People v Stuart, 100 NY2d 412 [2003]). We further note that the culpable
mental state required for conviction (Penal Law § 15.15 [2]) can be inferred from the facts [*2](People v Arcidicono, 75 Misc 2d 294 [1973], affd 79 Misc 2d 244 [App Term, 9th & 10th Jud Dists 1974]). The basis for complainant's allegation of personal knowledge as to defendant's ownership of the premises in the information can be fairly implied from her duties as an employee of the Town of Brookhaven. The source or validity of her knowledge is a matter to be raised as an evidentiary defense at trial, and need not be specified in the information (People v Casey, 95 NY2d 354, 360 [2000]; People v Hall, 4 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2004]). The court's summary denial of that portion of defendant's motion seeking suppression was warranted as there were no sworn allegations of fact to support the ground alleged (CPL 710.60 [1], [3]; People v Lofton, 129 AD2d 970 [1987], lv denied 70 NY2d 650 [1987]). Defendant's contention that the broken leg suffered by the People's witness does not constitute an exceptional circumstance under CPL 30.30 (4) (g) absent hospitalization or immobility is also without merit (People v Celestino, 201 AD2d 91, 95 [1994]).

We further find that the facts, as testified to by the People, together with the pictures admitted into evidence, when viewed in the light most favorable to the People, were sufficient to establish defendant's guilt beyond a reasonable doubt (People v Contes, 60 NY2d 620, 621 [1983]; see also People v Cabey, 85 NY2d 417, 420 [1995]). We do, however, agree with defendant that the fine imposed, the maximum permitted (Brookhaven Town Code § 45-12), was excessive. Thus, the judgment of conviction should be modified as indicated above. Finally, the other issues raised by defendant on this appeal were considered and found to be without merit.
Decision Date: February 22, 2005