Court Decisions & News

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent City of Rye Board of Appeals dated April 20, 2023, which, after a hearing, upheld the issuance of a certificate of occupancy to the respondent 530 Milton Road, LLC, by the City of Rye Department of Buildings, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated November 27, 2023. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with one bill of costs, and the matter is remitted to the respondent City of Rye Board of Appeals for further proceedings consistent herewith.

In December 2021, the respondent 530 Milton Road, LLC (hereinafter Milton), purchased a restaurant located in the City of Rye. In January 2022, Milton closed the restaurant to perform renovations. In June 2022, Milton obtained a permit for interior renovation work. However, that same month, a stop work order halted the renovations because Milton did not have the necessary permits for certain exterior renovations. After obtaining the necessary authorization from the City of Rye Department of Buildings, renovations were resumed and eventually completed. In November 2022, Milton was issued a certificate of occupancy, which stated that the occupancy of the building was for the "continued use of this building as a restaurant." Milton then resumed using the property as a restaurant.

The petitioners thereafter appealed to the respondent City of Rye Board of Appeals (hereinafter the Board), challenging the issuance of the certificate of occupancy. In a determination dated April 20, 2023, the Board upheld the issuance of the certificate of occupancy, concluding that the restaurant was a permitted use. In May 2023, the petitioners commenced this proceeding pursuant to CPLR article 78 to review the Board's determination. By judgment dated November 27, 2023, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal.

The Supreme Court erred in denying the petition and dismissing the proceeding. Judicial review of a challenged zoning board determination is generally limited to assessing whether the zoning board's determination was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Margulies v Town of Ramapo, 226 AD3d 783, 784). Furthermore, where the zoning board of appeals is authorized to interpret code requirements, such as here (see Code of the City of Rye § 197-81[A]), the zoning board's interpretation of its zoning ordinance is entitled to great deference (see Matter of Abramovitz v Zoning Bd. of Appeals of the Inc. Vil. of Bellport, 194 AD3d 810, 811). "However, where the issue involves pure legal interpretation of statutory terms, deference [to the zoning board of appeals] is not required" (Matter of Bartolacci v Village of Tarrytown Zoning Bd. of Appeals, 144 AD3d 903, 904 [internal quotation marks omitted]; see Matter of Kreger v Town of Southold, 230 AD3d 781, 782). "In such circumstances, the judiciary . . . is free to ascertain the proper interpretation from the statutory language and legislative intent" (Matter of Kreger v Town of Southold, 230 AD3d at 782 [alteration omitted], quoting Matter of Corrales v Zoning Bd. of Appeals of the Vil. of Dobbs Ferry, 164 AD3d 582, 585).

In interpreting a statute, the court should attempt to effectuate the intent of the legislature (see id. at 783). The starting point in any case of statutory interpretation must always be the language of the statute itself, giving effect to the plain meaning thereof (see id.; see also Matter of O'Donnell v Erie County, 35 NY3d 14, 20-21). "All parts of a statute are intended to be given effect and a statutory construction which renders one part meaningless should be avoided" (Matter of Kreger v Town of Southold, 230 AD3d at 783 [alteration omitted], quoting Matter of Jun Wang v James, 40 NY3d 497, 503).

Here, the Code of the City of Rye § 197-86, table B, column 1, (B-1)(3) defines a "[f]ull-service restaurant[]" to mean an establishment that, among other things, is situated "on a lot having frontage on an arterial highway or a county road as designated on September 1, 1958, and more than 150 feet from a residence district." There is no dispute that the property on which the restaurant is situated does not meet the foregoing requirements. Accordingly, full-service restaurant use is not a permitted use of the property based on the clear and unambiguous wording of the Code of the City of Rye. The Board's determination to uphold the issuance of the certificate of occupancy was therefore affected by an error of law, and it must be annulled.

Because the Board concluded that the restaurant use was a permitted use, it did not consider the question of whether the restaurant use may still warrant the issuance of a certificate of occupancy on the ground that it is a preexisting nonconforming use or whether that preexisting nonconforming use lapsed due to Milton's renovation work (see id. § 197-5[A][4]). Accordingly, the matter must be remitted to the Board for a determination on this issue (see Matter of HV Donuts, LLC v Town of LaGrange Zoning Bd. of Appeals, 169 AD3d 678; Greentree Realty, LLC v Village of Croton-on-Hudson, 46 AD3d 511, 513).

The petitioners' remaining contentions either are not properly before this Court or need not be considered in light of our determination.

GENOVESI, J.P., FORD, LOVE and GOLIA, JJ., concur.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Susan Cacace, J.), rendered May 31, 2022, convicting him of sexual abuse in the first degree, rape in the first degree, incest in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant moved pursuant to CPL 30.30(1)(a) to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. The defendant contends that the People's initial certificate of compliance (hereinafter COC) was improper and their statement of readiness dated September 2, 2021, was illusory, based upon the People's subsequent COCs.

In felony cases such as this one, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the action (see id. § 30.30[1][a]). Absent an individualized finding of special circumstances, "the prosecution shall not be deemed ready for trial for [the] purposes of [CPL 30.30] until it has filed a valid [COC]" (id. § 245.50[3]). The COC "shall state that, after exercising due diligence and making reasonable inquiries and efforts to ascertain the existence of . . . material and information subject to discovery [under CPL 245.20], the prosecution has disclosed and made available all known material and information . . . subject to discovery" (id. § 245.50[1]).

CPL 245.20(1) requires the prosecutor to automatically disclose to the defendant certain enumerated "material and information in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." Further, the prosecutor is obligated to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (id. § 245.20[2]).

"When a defendant moves pursuant to CPL 30.30 to dismiss an indictment on the ground that the People failed to exercise due diligence and therefore did not file a proper COC, 'the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure'' (People v Henderson, 237 AD3d 853, 854, quoting People v Bay, 41 NY3d 200, 213). "'If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed'' (People v Drayton, 231 AD3d 1057, 1060, quoting People v Bay, 41 NY3d at 213).

Here, the People's initial COC was proper, and the statement of readiness was not illusory. The record demonstrates that the People "exercis[ed] due diligence and ma[de] reasonable inquiries and efforts to ascertain the existence of . . . material and information subject to discovery," as evidenced by the extensive, voluminous documents provided to the defendant with the initial COC and statement of readiness (CPL 245.50[1]). The belated disclosures that accompanied the supplemental COCs were made in good faith and with due diligence (see People v Macaluso, 230 AD3d 1158, 1160; People v Williams, 224 AD3d 998, 1006). Notably, the defendant requested no additional sanctions or accommodations based upon the delayed disclosures, short of dismissal of the indictment (see CPL 245.80). Accordingly, inasmuch as the People's initial COC was proper, and the statement of readiness therefore was not illusory, the County Court properly denied the defendant's motion pursuant to CPL 30.30(1)(a) to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial (see People v Macaluso, 230 AD3d at 1160).

The defendant's contention that the County Court erred in admitting evidence of prior bad acts (see People v Molineux, 168 NY 264) is without merit. To the extent the defendant contends that the admission of that evidence violated his federal constitutional right to a fair trial, that contention is unpreserved for appellate review and, in any event, without merit. The court providently exercised its discretion in allowing testimony pertaining to the defendant's acts of sexual abuse toward the complainant that took place in the Bronx, even though the defendant was not charged with a crime based on those acts (see People v Cedillo, 242 AD3d 1107, 1107-1108; People v Patierno, 240 AD3d 516, 517). The testimony described events that took place during the course of sexual conduct for which the defendant was charged, was inextricably interwoven with the narrative of events, and provided necessary background information, as well as an appropriate context in which to evaluate the case (see People v Nicholson, 26 NY3d 813, 829-830; People v Leeson, 12 NY3d 823, 827; People v Tomlinson, 174 AD3d 929, 929-930). Further, the probative value of the evidence outweighed the risk of prejudice to the defendant (see People v Alvino, 71 NY2d 233, 242; People v Darby, 196 AD3d 643, 643). Moreover, any prejudicial impact was minimized by the court's instruction that the jury was not permitted to consider such prior uncharged crime as evidence of the defendant's guilt in this case or evidence that the defendant is a person disposed to commit such crimes, and that the evidence was offered as background material that was inextricably interwoven with the narrative of events in the case (see People v Morris, 21 NY3d 588, 598; People v Danon, 167 AD3d 930, 931). The jury is presumed to have followed those instructions (see People v Morris, 21 NY3d at 598).

The defendant's contention that he was deprived of his constitutional right to present a complete defense by the County Court's application of the Rape Shield Law (CPL 60.42) is unpreserved for appellate review (see id. § 470.05[2]; People v Shaw, 126 AD3d 1016, 1016). In any event, the court properly limited additional inquiry or comment about this matter, and the defendant's right to present a defense was not unduly curtailed thereby (see People v Bernard, 203 AD3d 945, 945-946; People v Simmons, 106 AD3d 1115, 1116).

Contrary to the defendant's contention, the County Court did not err in declining his request for a missing witness charge regarding the People's failure to call the sole outcry witness. The defendant failed to show that the uncalled witness would provide noncumulative testimony (see People v Mayes, 200 AD3d 718, 719; People v Williams, 195 AD3d 1050, 1051), and defense counsel was permitted to comment during summation on the People's failure to call the witness in question (see People v Morris, 207 AD3d 477, 478; People v Grant, 170 AD3d 888, 890). We note that the People cannot raise the issue of untimeliness of the defendant's request for a missing witness charge for the first time on appeal (see People v Read, 97 AD3d 702, 703; People v Jones, 23 AD3d 399, 399; People v Young, 4 AD3d 441, 441-442).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). In this regard, neither the absence of additional witnesses to the abuse, nor minor inconsistencies in the complainant's trial testimony, rendered her account incredible (see People v Robertson, 240 AD3d 617, 618; People v Turse, 150 AD3d 1158, 1159). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d at 348-349).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (George E. Fufidio, J.), rendered December 5, 2022, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted, upon a jury verdict, of one count of murder in the second degree and two counts of criminal possession of a weapon in the second degree in connection with the murder of the victim in a parking lot in Westchester County. The defendant appeals.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633; People v Stewart, 222 AD3d 781, 782).

The defendant's contention that he was deprived of a fair trial by various comments made by the prosecutor during summation is unpreserved for appellate review, as the defendant failed to object, failed to request curative instructions, and did not timely move for a mistrial on the specific grounds now claimed (see CPL 470.05[2]; People v Romero, 7 NY3d 911, 912; People v Flippen, 236 AD3d 815, 816). In any event, to the extent that any of the challenged comments were improper, they were not so pervasive or egregious as to have deprived the defendant of a fair trial (see People v Escalona, 237 AD3d 968, 970; People v Flippen, 236 AD3d at 816).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

Westchester County District Attorney Susan Cacace announced today that a painter-for-hire was given an enhanced sentence of 20 years in state prison for raping an 11-year-old girl after he denied responsibility for the rape in an interview with the Department of Probation.

Anselmo Yambay Pena, 61, of Peekskill, had previously been promised a sentence of 17 years in state prison in exchange for pleading guilty to Rape in the First Degree, a class B violent felony, and admitting to his criminal conduct. However, Pena's denial of his culpability led Judge Robert Prisco on Friday to impose an enhanced sentence of 20 years in prison, followed by 20 years of post-release supervision. Pena will also have to register as a sex offender.

DA Cacace said: "This defendant's denial of what he did ignores the harm he committed and retraumatizes the victim in this case. Those who abuse defenseless children must be given penalties severe enough to deter future misconduct, and I thank Judge Prisco for taking the seriousness of the defendant's denials into account when imposing the enhanced sentence."

On Feb. 15, 2024, the defendant was hired to paint apartments at a residential building in Peekskill. In one apartment belonging to the victim's family, the defendant raped the victim, who was then 11 years old.

The investigation was conducted by the Peekskill Police Department.

The case was prosecuted by Senior Assistant District Attorney Stephanie Baehr of the Child and Elder Abuse Bureau.