Summary
In People v. Miao (61 Misc 3d 148[A], 2018 NY Slip Op 51742[U] [App Term, 2d Dept, 9th & 10th Jud Dist 2018]), this court held that an offense based on a violation of Brookhaven Town Code § 16-4 (A) imposes liability on owners at the time the violations are detected (id. at *2) and, therefore, contrary to defendant's contention, the accusatory instrument need not allege that defendant made the changes.
Summary of this case from People v. PittiOpinion
2016-673 S CR
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Guolan MIAO, Appellant.
Guolan Miao, appellant pro se. Office of the Brookhaven Town Attorney (Deirdre Cicciaro of counsel), for respondent.
Guolan Miao, appellant pro se.
Office of the Brookhaven Town Attorney (Deirdre Cicciaro of counsel), for respondent.
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
ORDERED that the judgments of conviction are affirmed.
Following a jury trial, defendant was convicted of two charges of violating Brookhaven Town Code (Code) § 16-3 (A), and one charge each of violating Code §§ 16-4 (A), 30-32, and 85-211, based on her ownership of a single-family home which had been converted to multifamily use by means of physical alterations that had been performed without the requisite building permits and certificates of occupancy, and in which no smoke detectors had been installed.
Defendant's contention that the informations alleging the violations of Code §§ 16-3 (A), 16-4 (A) and 85-211 are facially insufficient in the absence of factual allegations sufficient to establish her ownership of the premises at the time the alterations were performed is without merit. The allegations suffice to allege defendant's ownership of the premises (see People v. Livant , 56 Misc 3d 141[A], 2017 NY Slip Op 51117[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v. Ippolito , 55 Misc 3d 135[A], 2017 NY Slip Op 50491[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v. Caravousanos , 2 Misc 3d 7, 11 [App Term, 2d Dept, 9th & 10th Jud Dists 2003] ). It is not an element of the offense based on Code § 16-3 (A) that defendant was the owner at the time the alterations were made, as the offense is committed when an owner "maintain[s]" or "continue[s] to maintain" alterations created in violation of the permit requirement, here, for a nearly three-month period from the date defendant had purchased the property to when the informations were filed (see e.g. People v. Rhode , 59 Misc 3d 132[A], 2018 NY Slip Op 50470[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. 1262 NY, LLC , 57 Misc 3d 153[A], 2017 NY Slip Op 51594[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; cf. People v. James , 49 Misc 3d 154[A], 2015 NY Slip Op 51791[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v. Baumgarten , 37 Misc 3d 131[A], 2012 NY Slip Op 51980[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2012] ). The offenses based on violations of the certificate of occupancy (Code § 16-4 [A] ), smoke detector (Code § 30-32), and permitted use (Code § 85-211) requirements similarly impose liability on owners at the time the violations are detected.
Defendant's claim that the Town's investigators violated her Fourth Amendment rights by their repeated warrantless entries into the premises is not preserved for appellate review (see CPL 470.05 [2] ). Defendant never moved pretrial on written notice to the People to challenge the searches (see CPL 710.60 [1] ; People v. Mezon , 80 NY2d 155, 158 [1992] ; People v. Frederick , 46 Misc 3d 33, 36 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ), and the trial court properly denied defendant's oral motion to conduct a suppression hearing (e.g. People v. Hinojoso-Soto , 161 AD3d 1541, 1544 [2018] ; cf. CPL 710.40 [2], 710.60 [5] ; People v. Lewis , 23 NY3d 179, 188 [2014] ). In any event, nothing in the available record supports defendant's claim that she had either standing or a reasonable expectation of privacy in the premises. Defendant was neither the property's owner nor did she reside in the premises when the entries onto the premises commenced, and she therefore had no reasonable expectation of privacy therein (see People v. Ramirez-Portoreal , 88 NY2d 99, 108 [1996] ). There is also no dispute that, at the time of the investigative entries of August and November of 2015, defendant, while by then the premises' owner, was an absentee landlord collecting rents from multiple tenants occupying all of the premises' bedrooms and at least one ground-floor space that had been converted for use as a bedroom. Consequently, she had no standing to complain of those entries (see People v. Fitzsimmons , 51 Misc 3d 135[A], 2016 NY Slip Op 50549[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. All State Props., LLC , 36 Misc 3d 159[A], 2012 NY Slip Op 51820[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v. M. Santulli, LLC , 29 Misc 3d 54, 58 [App Term, 2d Dept, 9th & 10th Jud Dists 2010] ). Even if defendant had standing to object to the search, the investigators' testimony established that they reasonably relied on the authority of a tenant to enter the premises (see People v. Adams , 53 NY2d 1, 9 [1981] ; People v. Dean , 46 AD3d 1229, 1231 [2007] ).
In the absence of a trial motion to dismiss on the ground that the trial proof was legally insufficient to support the convictions, the claim is not preserved for appellate review (see CPL 470.05 [2] ; People v. Hawkins , 11 NY3d 484, 491-492 [2008] ; People v. Gray , 86 NY2d 10, 19 [1995] ). In any event, we find that the evidence, viewed in the light most favorable to the People ( People v. Contes , 60 NY2d 620, 621 [1983] ) and "indulging in all reasonable inferences in the[ir] ... favor" ( People v. Ford , 66 NY2d 428, 437 [1985] ), was legally sufficient to prove that defendant maintained a premises with structural modifications in violation of the permit and certificate of occupancy requirements, and that she used the premises for multiple occupancy without a single smoke detector present.
The fines imposed were not unduly harsh or excessive.
Accordingly, the judgments of conviction are affirmed.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.