People v Hyra (Marek)

[*1] People v Hyra (Marek) 2010 NY Slip Op 52207(U) [29 Misc 3d 143(A)] Decided on December 15, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-1215 W CR.

The People of the State of New York, Respondent,

against

Marek Hyra, Appellant.

Appeal from a judgment of the City Court of White Plains, Westchester County (Brian Hansbury, J.), rendered May 14, 2008. The judgment convicted defendant, after a nonjury trial, of failing to obtain a plumbing permit, failing to obtain an electrical permit and failing to obtain a building permit, and imposed sentence.

ORDERED that the judgment of conviction is modified, on the law, by reducing the fines imposed to $150 per count; as so modified, the judgment of conviction is affirmed.

The information charged defendant with, among other things, three counts of violating the White Plains Supplemental Building Code in that defendant failed to obtain a plumbing permit, an electrical permit and a building permit. Following a nonjury trial,
defendant was found guilty of these violations and the court imposed a fine in the total amount of $5,000, holding that defendant was guilty of continuing violations relating to the charges.

The $5,000 fine imposed, based on continuing violations, was improper. As there were no factual allegations in the accusatory instrument to the effect that each day that defendant failed to have the necessary permits constituted a separate violation, we find that the accusatory instrument charged only one violation as to each count alleged therein (see People v Fremd, 41 NY2d 372 [1977]; People v Melchner, 4 Misc 3d 132[A], 2004 NY Slip Op 50727[U] [App Term, 9th & 10th Jud Dists 2004]). Section hh of the White Plains Supplemental Building Code provides that each offense is subject to a fine not to exceed $150. Accordingly, the sentence imposed is modified by reducing the fine to $150 per count, for a total of $450.

We have considered the other issues raised on appeal and find them to be without merit.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: December 15, 2010