Appeal from an amended judgment of the Justice Court of the Town of Southampton, Suffolk County (Deborah E. Kooperstein, J.), rendered November 17, 2005. The amended judgment found defendant in violation of his conditional discharge and resentenced him to a $77,250 fine.

Amended judgment of conviction modified on the law by vacating the resentence imposed; as so modified, amended judgment affirmed, and matter remanded to the court below for resentencing.

In 1997, defendant purchased acreage in Southampton which had a certificate of occupancy for use as a plant nursery. In September 2001, defendant was cited for
violating Southampton Town Code § 330-117 (change of nonconforming use of property) and § 123-16A (certificate of occupancy). In June 2005, defendant pleaded guilty to these charges and was sentenced to a conditional discharge which included several conditions, including condition two which states that defendant "shall cease any and all activity on the property with the exception of activity necessary to conform the property to the permitted use of Plant Nursery as outlined in § 330-10 of the Zoning Code of the Town of Southampton. The Defendant shall have thirty (30) days from this date forward to bring the property into such compliance." Defendant was subsequently charged with violating his conditional discharge.

Contrary to the People's contention, we find that the code enforcement officer improperly searched defendant s property without a warrant. However, any error committed by the court below when it allowed the officer to testify about what he observed as a result of his warrantless search was harmless in light of the other overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 213 [1975]). Without considering the testimony of said officer, the evidence adduced at the violation hearing was sufficient to establish, beyond a reasonable doubt, [*2]that defendant failed to comply with the aforementioned condition two.

We note that the accusatory instruments charged defendant with only a single count of each offense, to wit, that the offense occurred on September 14, 2001, not with separate violations occurring each day or week of any specified period (see People v Fremd, 41 NY2d 372 [1977]). Consequently, the court below improperly imposed fines based on continuous violations. The maximum permissible fine for defendant's violation of Southampton Town Code § 330-117 is $1,000, $1,500 or $2,000, depending on whether this was defendant's first, second or third conviction (see Southampton Town Code § 330-186B). The maximum permissible fine for defendant's violation of Southampton Town Code § 123-16A is $1,000. Accordingly, the matter is remanded to the court below for resentencing.

McCabe, J.P., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: April 21, 2008