People v Delroy (David)

[*1] People v Delroy (David) 2015 NY Slip Op 50597(U) Decided on April 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2013-1236 N CR

The People of the State of New York, Respondent,

against

David Delroy Also Known as DAVID BROWN, Appellant.

Appeal from a judgment of the District Court of Nassau County, Fourth District (David W. McAndrews, J.), rendered May 10, 2013. The judgment convicted defendant, after a nonjury trial, of violating sections 93-28 and 246-5.2 of the Code of the Town of Oyster Bay.

ORDERED that the judgment of conviction is reversed, on the law and facts, the information is dismissed, and any fines, if paid, are remitted.

After a nonjury trial, the District Court found defendant guilty of altering the interior of an existing building and occupying it for more than 30 days without having been issued a certificate of occupancy, in violation of Code of the Town of Oyster Bay § 93-28, and using the building, a single-family dwelling, as a two-family residence in an R1-6 district zone without first obtaining a special use permit and zoning board approval, in violation of Code of the Town of Oyster Bay § 246-5.2.

Upon a review of the record, we find that the evidence, when considered in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally insufficient to establish defendant's guilt beyond a reasonable doubt of violating the Code of the Town of Oyster Bay § 93-28. The proof adduced at trial established that there was a second certificate of occupancy that had been issued in 1960 and that prior owners of the premises had been allowed to have a second kitchen and had been approved for a mother/daughter. As the kitchen was already in existence prior to defendant's purchase of the premises, the People failed to establish that defendant had erected, enlarged, extended or altered the premises without obtaining a certificate of occupancy therefor.

We further find that the evidence was legally insufficient to establish defendant's guilt of violating Code of the Town of Oyster Bay § 246-5.2. The evidence failed to establish the charge, as set forth in the accusatory instrument, that defendant was using a single-family dwelling as a two-family dwelling. The mere presence of a second kitchen did not make the dwelling a two-family dwelling, as that term is defined in Code of the Town of Oyster Bay § 246-2.4. Accordingly, the judgment of conviction is reversed and the information is dismissed.

Iannacci and Garguilo, JJ., concur.

Marano, P.J., taking no part.

Decision Date: April 09, 2015