People v Gebbia

[*1] People v Gebbia 2014 NY Slip Op 50808(U) Decided on May 9, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MARANO and GARGUILO, JJ.
2011-1246 N CR

The People of the State of New York, Respondent,

against

Laurie Gebbia, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Norman Janowitz, J.), rendered December 9, 2010. The judgment convicted defendant, after a nonjury trial, of maintaining a fence on her property without a building permit or certificate of completion.

ORDERED that the judgment of conviction is affirmed.

The record shows that, after defendant had received a variance and had been issued a building permit to erect a fence on her property, she was informed in a letter from the Town of Hempstead's Building Department, dated September 21, 2009, that her building permit had been revoked since it had been determined, based on an inspection of her property and a review of Building Department records, that the fence that had been constructed under the permit was not located where defendant had indicated it would be on the site plan that was submitted as part of her application for the permit. Subsequently, defendant was charged in an information, dated June 8, 2010, with maintaining a fence on her property without the required permit, in violation of Hempstead Town Code § 86-9 (A) (1). After a nonjury trial, defendant was convicted of the charged offense.

Defendant's contention that the evidence was legally insufficient to establish her guilt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of violating Hempstead Town Code § 86-9 (A) (1), in that, on the date alleged in the information, defendant maintained a fence that was either entirely or partially on her property while her building permit therefor had been revoked and without obtaining the required certificate of completion (see Hempstead Town Code § 86-16 [C]). Contrary to defendant's contention on appeal, it was not the People's burden under the Hempstead Town Code to demonstrate a valid basis for the revocation of the building permit, i.e., that the fence was not actually located where defendant had indicated on her site plan that it would be. We need not pass upon whether defendant could have challenged the validity of the revocation of the permit to build the fence as an affirmative defense to the criminal proceeding since, in any event, she failed to make any such showing at trial.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d [*2]342 [2007]; People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]).

Defendant's claims of selective enforcement and malicious prosecution are not preserved for appellate review. In any event, such claims are not to be considered as affirmative defenses to a criminal charge, to be determined together with the issue of guilt by the trier of fact, but, rather, they should have been addressed to the court before trial in a motion to dismiss the prosecution upon constitutional grounds (see Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686, 693 [1979]; People v Goodman, 31 NY2d 262, 268-269 [1972]; People v Carter, 86 AD2d 451 [1982]), which defendant failed to do. As to defendant's remaining contentions, they are either raised for the first time on appeal or dehors the record and, thus, we do not consider them (see People v Bregaudit, 31 Misc 3d 152[A], 2011 NY Slip Op 51136[U]; [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Marano and Garguilo, JJ., concur.

Decision Date: May 09, 2014