Appeal from a judgment of the Justice Court of the Town of Southeast, Putnam County (Richard W. Vercollone, J.), rendered June 26, 2006. The judgment convicted defendant, after a nonjury trial, of violating sections 138-10 and 138-24 of the Code of the Town of Southeast.

Judgment of conviction affirmed.

In the accusatory part of the information, defendant was charged with occupying the premises without a certificate of occupancy in violation of sections 138-10 and 138-24 of the Code of the Town of Southeast. The factual part of the information alleged, inter alia, in a single count that defendant established a retail business, a use not permitted (see Code of the Town of Southeast § 138-24), without having a certificate of
occupancy (see Code of the Town of Southeast § 138-10). Since the factual allegations provide reasonable cause to believe that defendant committed the offenses charged in the accusatory part of the information and the nonhearsay allegations of the factual part of the information establish, if true, every element of the offenses charged and defendant's commission thereof (see CPL 100.15, 100.40 [1]), the court properly denied defendant's motion to dismiss the accusatory instrument based on legal insufficiency.

The evidence, when viewed in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict [*2]of guilty was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]). The testimony of the Zoning Enforcement Officer as to his observations at the subject premises and his search of the records of the Town was sufficient to establish that defendant did not have the required certificate of occupancy for the use of the premises for retail sales and that such a use was not permitted under the Code absent a special permit.

Defendant's contention that the information was duplicitous in that it charged defendant in one count with violating sections 138-10 and 138-24 of the Code of the Town of Southeast is not properly preserved for review as defendant failed to raise said
issue in the trial court (see People v Dumblewski, 61 AD2d 875 [1978]; see also People v Terry, 2 AD3d 977 [2003], lv denied 2 NY3d 746 [2004]).

It should be noted that since the People's witness during direct examination described the interior of the subject premises, and the evidence of defendant's guilt of violating section 138-10 of the Code of the Town of Southeast was overwhelming, the admission of the photographs into evidence, even if error, was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Rudolph, P.J., Lippman and Owen, JJ., concur.
Decision Date: May 16, 2007