People v. Castanza, 2009 NY Slip Op 51416(U) (N.Y. App. Term 6/29/2009), 2008-1178 SCR.

• Decision Date: 29 June 2009
• Docket Number: 2008-1178 SCR.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. VINCENT C. CASTANZA, Appellant.
• Court: New York Supreme Court — Appellate Term

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2009 NY Slip Op 51416(U)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. VINCENT C. CASTANZA, Appellant.

2008-1178 SCR.

Appellate Term, Supreme Court, Second Department.

Decided June 29, 2009.

Appeal from judgments of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J.), rendered May 8, 2008. The judgments convicted defendant, after a nonjury trial, of littering and dumping on private property, discarding appliances outside of a building, and storing unregistered vehicles on private property.

Judgments convicting defendant of littering and dumping on private property in violation of Brookhaven Town Code § 45-4 (C) and of discarding appliances outside of a building in violation of Brookhaven Town Code § 51-1 (C) affirmed.

Judgment convicting defendant of storing unregistered vehicles on private property in violation of Brookhaven Town Code § 45-6 reversed, on the law, accusatory instrument dismissed, and fine, if paid, remitted.

PRESENT: RUDOLPH, P.J., MOLIA and NICOLAI, JJ.

Defendant was charged in three separate accusatory instruments with littering and dumping on private property (Brookhaven Town Code § 45-4 [C]), discarding appliances outside of a building (Brookhaven Town Code § 51-1 [C]), and storing unregistered vehicles on private property (Brookhaven Town Code § 45-6). After a nonjury trial, the District Court convicted defendant of all three charges. The instant appeal by defendant ensued.

Pursuant to Brookhaven Town Code § 45-6, an "owner of private property . . . may store not more than one unregistered motor vehicle . . . provided that said motor vehicle is stored in a suitably enclosed location." This court has held that an accusatory instrument charging such an offense is jurisdictionally defective if it merely alleges storage for a single specified time and date, since storage connotes a sense of permanence in that the item has remained on the property for a prolonged period of time (see People v Gomes, 11 Misc 3d 142[A], 2006 NY Slip Op 50734[U] [App Term, 9th & 10th Jud Dists 2006]; People v Durao, 3 Misc 3d 134[A], 2004 NY Slip Op 50449[U] [App Term, 9th & 10th Jud Dists 2004]). Because the relevant accusatory instrument herein provides only one specific time and date of observation, it failed to show that any unregistered vehicle was stored on the property and, therefore, is jurisdictionally defective. Consequently, the judgment convicting defendant of storing unregistered vehicles on private property in violation of Brookhaven Town Code § 45-6 is reversed, said accusatory instrument is dismissed, and the $500 fine imposed upon said conviction, if paid, remitted.

A review of the trial testimony indicates that in December 2005, the town investigator observed, from the road in front of defendant's private property, litter comprised of paper cups, bottles, household garbage, buckets, tarps, piles of tires and unregistered vehicles outside of the building located on said property. The investigator took photographs of defendant's property from the road, which were admitted into evidence as People's Exhibits 2A and 2D. On January 6, 2006, after receiving numerous complaints, the investigator went onto defendant's property, from which vantage point he made observations and took photographs, which were admitted into evidence as People's Exhibits 2B and 2C. It is well settled that administrative searches fall with the purview of the Fourth Amendment (see Camara v Municipal Court, 387 US 523 [1967]). When no exigent circumstances exist, a code inspector may enter upon, and make a visual search of, private property only after first obtaining consent or a warrant pursuant to CPL 690 (see e.g. People v Abruzzi, 52 AD2d 499 [1976], affd 42 NY2d 813 [1977]; People v Sikorsky, 195 Misc 2d 534 [App Term, 9th & 10th Jud Dists 2002]). The record on appeal does not indicate that exigent circumstances existed, and the town...