People v Primus (Anthony)

[*1] People v Primus (Anthony) 2007 NY Slip Op 50621(U) [15 Misc 3d 130(A)] Decided on March 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1564 K CR.

The People of the State of New York Respondent,

against

Anthony Primus, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Margarita Lopez -Torres, J., speedy trial motion; Suzanne M. Mondo, J., hearing and trial), rendered July 12, 2005. The judgment convicted defendant, after a nonjury trial, of violating Administrative Code of the City of New York § 26-127.2 (J) (violations of the zoning resolution in residential districts, public nuisance and order of closure) and Administrative Code of the City of New York § 26-249 (violation of peremptory orders).

Judgment reversed on the law and facts and accusatory instrument dismissed.

Upon a review of the evidence we find the trial proof legally insufficient to establish defendant's guilt of a zoning violation and of violating a peremptory order. While the order prohibited the occupancy of the basement as a social club, defendant was allowed to be present in his basement for certain purposes and it was not proved that, at the time of the alleged offenses, his presence constituted conduct that violated that order. Moreover, the proof did not establish, beyond a reasonable doubt, that the furnishings in defendant's basement violated the zoning resolution. Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.

Pesce, P.J., Golia and Rios, JJ., concur.