People v Gomes (2006 NY Slip Op 50734(U))

People v Gomes (George)

2006 NY Slip Op 50734(U) [11 Misc 3d 142(A)]

Decided on April 20, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

GEORGE GOMES, Appellant.

Appeal from four judgments of the District Court of Suffolk County, Sixth District (Toni A. Bean, J.), rendered December 16, 2004. The judgments convicted defendant, after a nonjury trial, of two violations of storing of motor homes, a non-permitted use in a J-business 2 district (Code of the Town of Brookhaven § 85-226), and violations of section 85-20 and 85-58 of the Code of the Town of Brookhaven.

Judgments convicting defendant of violating sections 85-20 and 85-58 of the Code of the Town of Brookhaven affirmed.

Judgments convicting defendant of violating section 85-226 of the Code of the Town of Brookhaven reversed on the law, informations dismissed and fines, if paid, remitted.

At the outset, we note that no issue is raised concerning the judgments convicting defendant of violating sections 85-20 and 85-58 of the Code of the Town of Brookhaven. Accordingly, said judgments are affirmed.

The informations charging defendant with two violations of section 85-226 of the Code of the Town of Brookhaven merely alleged that defendant allowed the outside storage of motor home style trailers on the two properties at a single specific time and date. Such allegations, absent more, are conclusory and do not establish prima facie the storing of said trailers (see People v Durao, 3 Misc 3d 134[A], 2004 NY Slip Op 50449[U] [App Term, 9th & 10th Jud Dists]). Storing a vehicle denotes a sense of permanence, i.e., that said vehicle has remained on the property for a prolonged period of time (Matter of Monument Garage v Levy, 266 NY 339, 344 [1935]; People v Lotito, NYLJ, Jan. 15 1991 [App Term, 9th & 10th Jud Dists]; cf. People v Brunter, NYLJ, Mar. 1, 2004 {3 Misc 3d 131} [App Term, 9th & 10th Jud Dists] [wherein both the information and supporting deposition established that the junked vehicles remained on the premises for a lengthy period of time]; People v Sikorsky, 195 Misc 2d 534 [App Term, 9th & 10th Jud Dists 2002], lv denied 99 NY2d 616 [2003]). Since the accusatory instruments herein are devoid of any factual allegations from which it can be inferred that the trailers remained on [*2]the premises for any prolonged period of time, they must be dismissed (see People v Durao, 3 Misc 3d 134[A], 2004 NY Slip Op 50449[U], supra).