People v. Macs

• Decision Date: 21 May 2012
• Docket Number: No. 2007–1097DCR.,2007–1097DCR.
• Citation: 2012 N.Y. Slip Op. 50939,35 Misc.3d 143,953 N.Y.S.2d 552
• Parties: The PEOPLE of the State of New York, Respondent, v. Janis E. MACS, Appellant.
• Court: New York Supreme Court — Appellate Division

35 Misc.3d 143

953 N.Y.S.2d 552

2012 N.Y. Slip Op. 50939

The PEOPLE of the State of New York, Respondent,

v.Janis E. MACS, Appellant.

No. 2007–1097DCR.

Supreme Court, Appellate Term,

Second Department,

9th And 10th Judicial Districts.

May 21, 2012.

OPINION TEXT STARTS HEREPresent: IANNACCI, J.P., NICOLAI and MOLIA, JJ.

Appeal from judgments of the City Court of Poughkeepsie, Dutchess County (John B. Garrity, J.), rendered June 27, 2007. The judgments convicted defendant, after a nonjury trial, of, respectively, possession of an open container of alcohol and burning garbage, refuse or rubbish in an open fire.

ORDERED that the appeal from the judgment convicting defendant of possession of an open container of alcohol is dismissed as abandoned; and it is further,

ORDERED that the judgment convicting defendant of burning garbage, refuse or rubbish in an open fire is affirmed.

As relevant to the judgment of conviction being reviewed on this appeal, defendant was charged with burning garbage, refuse or rubbish in an open fire (Code of the City of Poughkeepsie § 11–25). Following a nonjury trial, defendant was convicted of the charged offense.

Code of the City of Poughkeepsie § 11–25 provides, in pertinent part, that “[n]o person shall burn any garbage, refuse or rubbish in an open fire within the city, except in such manner as is prescribed by the Fire Chief.”

As defendant concedes, his challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492 [2008] ). In any event, defendant's contention that the evidence is legally insufficient because the prosecution failed to prove that he was not acting in a manner prescribed by the Fire Chief relies on a misinterpretation of the statute. The fact that the qualifying language of section 11–25 of the Code of the City of Poughkeepsie is introduced by the word “except” is not conclusive in determining whether the qualifying language sets forth an exception or a proviso ( see People v. Davis, 13 NY3d 17, 31 [2009], citing McKinney's Cons Laws of NY, Book 1, Statutes § 211, Comment, at 370). The “[e]ssential allegations are generally determined by the [law] defining the crime. If the defining [sanction] contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the [sanction], the exception generally is [a proviso which represents] a matter for the defendant to raise in defense, either under the general issue or by affirmative defense” ( People v. Farella, 19 Misc.3d 145[A], 2008 N.Y. Slip Op 51129 [U], *1 [App Term, 9th & 10th Jud Dists 2008], quoting People v. Kohut, 30 N.Y.2d 183, 187 [1972];see also People v. Santana, 7 NY3d 234, 237 [2006] ). In the instant case, the ordinance requires reference to the Fire Chief's regulations to determine the applicability of the qualifying language. Thus, as a matter of “common sense and reasonable pleading” (People v. Devinny, 227 N.Y. 397, 401 [1919] ), the drafters of the Code of the City of Poughkeepsie did not intend that the People plead and prove that defendant did not act in a manner prescribed by the Fire Chief ( see People v. Davis, 13 NY3d at 31–32). Instead, this qualifying language was intended as a proviso, to be raised by defendant either as a bar to ...