People v. Burden
| Decision Date | 30 September 2021 |
| Docket Number | 2020-532 S CR |
| Citation | 2021 NY Slip Op 50950 (U) |
| Parties | The People of the State of New York, Respondent, v. Martin H. Burden As Trustee of Burden Family Irrevocable Trust, Appellant. |
| Court | New York Supreme Court |
Unpublished Opinion
Raymond Negron, for appellant.
Port Jefferson Village Attorney's Office (Richard M. Harris of counsel), for respondent.
PRESENT:: TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON TIMOTHY S. DRISCOLL, JJ
Appeal from four judgments of the Justice Court of the Village of Port Jefferson, Suffolk County (John F. Reilly, J.), rendered February 25, 2020. The judgments, after a nonjury trial convicted defendant of two charges of violating Code of the Village of Port Jefferson § 161-27 (F), and one charge each of violating Code of the Village of Port Jefferson § 161-27 (G) and Code of the Village of Port Jefferson § 250-28 (C) (4), respectively, and imposed sentences.
ORDERED that each of the two judgments convicting defendant of violating Code of the Village of Port Jefferson § 161-27 (F) is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgments of conviction are affirmed, and the matters are remitted to the Justice Court for resentencing; and it is further, ORDERED that the judgment convicting defendant of violating Code of the Village of Port Jefferson § 161-27 (G) is affirmed; and it is further, ORDERED that the judgment convicting defendant of violating Code of the Village of Port Jefferson § 250-28 (C) (4) is reversed, on the law, the accusatory instrument charging that offense is dismissed, and the fine if paid, is remitted.
Immediately prior to commencing a nonjury trial, the People filed four new informations charging defendant with, among other things, two charges of violating Code of the Village of Port Jefferson (Code) § 161-27 (F), and one charge each of violating Code § 161-27 (G) and Code § 250-28 (C) (4), respectively. After the trial, defendant was found guilty of these charges. The Justice Court sentenced defendant to a fine in the sum of $2, 000 for violating Code § 161-27 (F), $2, 000 for violating Code § 161-27 (G) and $1, 000 for violating Code § 250-28 (C) (4).
On appeal, defendant contends, among other things, that no arraignment took place on the charges in the newly filed informations. However, even if defendant was never properly arraigned, this error is not fundamental, and, "inasmuch as defendant appeared in court with [an] attorney and submitted to the court's jurisdiction, consented to the assignment of a trial date and... proceeded to trial fully aware of the charge[s] asserted," defendant suffered no prejudice by the procedure followed (People v Hallenbeck, 81 A.D.3d 1077, 1079 [2011]; see also People v Brigandi, 57 Misc.3d 5, 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Repanti, 40 Misc.3d 131[A], 2013 NY Slip Op 51132[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013], affd 24 N.Y.3d 706 [2015]).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we find that the evidence was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of violating Code § 250-28 (C) (4). Pursuant to Code § 250-28 (C) (4), the People were required to prove that a "fence [was] erected or maintained on the front line of the lot or any side lines of the lot, extending from the front thereof to the side lines of the lot, exceeding three feet in height." The proof at trial failed to establish the location of the front line of the lot and its relation to the fencing or that the fencing "extend[ed] from the front thereof to the side lines of the lot." Additionally, the proof was legally insufficient to establish that the property was situated on a curve (Code § 250-9) and, thus, failed to establish that the premises had two front yards with fences situated thereon in violation of Code § 250-28 (C) (4).
"A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence" (CPL 1.20 [15]). A defendant must be sentenced on each...
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