People v Shaifer (Norman)

[*1] People v Shaifer (Norman) 2015 NY Slip Op 50599(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2013-2013 RO CR

The People of the State of New York, Respondent,

against

Norman Shaifer, Appellant.

Appeal from a judgment of the Justice Court of the Town of Orangetown, Rockland County (Richard C. Finning, J.), rendered July 18, 2013. The judgment convicted defendant, after a nonjury trial, of two violations of the Town of Orangetown Zoning Code by maintaining a residential premises in a commercial zone.

ORDERED that, on the court's own motion, the notice of appeal from a decision of the same court dated June 21, 2013 is deemed a valid notice of appeal from the judgment of conviction (see CPL 460.10 [6]); and it is further,

ORDERED that the judgment of conviction is affirmed.

On June 8, 2012, the People charged defendant, in an information, with violating two provisions of the Town of Orangetown Zoning Code (Code) by converting the second floor of a detached garage located on defendant's commercial property into a residential unit. At a nonjury trial, the People established that the property is zoned exclusively for commercial use; that no certificate of occupancy existed for a residential premises on the property; that defendant's prior application to the Zoning Board of Appeals for a variance to convert the principal and secondary structures to residential use had been denied; that the second floor of the garage was fully equipped and furnished exclusively for residential use and was so used by a rent-paying tenant; and that, after the occupant's death, defendant wrote to the widow demanding two months unpaid "rent" pursuant to the deceased spouse's "lease" for "the apartment." The Justice Court convicted defendant of both offenses, finding "incredible" defendant's testimony that the garage was so configured as to serve as a security office accessory to the commercial use of the main building and that the occupant had been a 24-hour security guard at the premises until his death.

Defendant contends that he had a legal right to provide 24-hour security for his property; that the Code did not, and could not legally, prohibit this use; and that the evidence of alleged lax security practices with respect to document maintenance by the Town rendered insufficient the Town's purported proof of the absence of a certificate of occupancy for the subject premises' residential use. We reject these contentions and affirm.

Upon a review of the relevant provisions of the Code, we are satisfied that the Code is sufficiently clear as to its definitions of permitted and prohibited uses and structures; that the relevant provisions do not violate state law; and that the enforcement of the Code upon the facts herein was not irrational or unreasonable. Further, the convictions were not against the weight [*2]of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]). The testimony by Town officials as to the contents of the files maintained by the Town is competent evidence thereof (People v M. Santulli, LLC, 29 Misc 3d 54, 59-60 [App Term, 9th & 10th Jud Dists 2010]). The purported security shortcomings in the Town's practice of allowing public inspections of the contents of property files address the weight of the evidence and not its admissibility, and we do not find that the proof thereof rendered the convictions against the weight of the evidence.

Accordingly, the judgment of conviction is affirmed.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.

Decision Date: April 09, 2015