Appeal from a judgment of the Justice Court of the Village of Lattingtown, Nassau County (Leonard J. Connolly, J.), rendered May 30, 2008. The judgment convicted defendant, after a nonjury trial, of 84 counts of violating the Lattingtown Village Code.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, (1) by vacating defendant's conviction of two counts of violating Lattingtown Village Code § 136-5 (B), dismissing those counts, and remitting the fines imposed thereon, if paid, and (2) by reducing the fines imposed on the convictions of 25 counts of violating Lattingtown Village Code § 136-5 (A) and the remaining count of violating Lattingtown Village Code § 136-5 (B), from $1,000 to $650 on each count and remitting the fines, if paid, exceeding that amount; as so modified, the judgment of conviction is affirmed.

On April 24, 2007, the People charged defendant with 99 counts of violating various provisions of the Lattingtown Village Code involving landfill, the dumping of garbage, rubbish and trash, the destruction of trees, and violations of a stop work order. The Justice Court convicted defendant of 84 of the counts and sentenced defendant to a total of $42,000 in fines. Defendant appeals, alleging that the evidence was legally insufficient to support certain of the convictions, that as to all of the counts, the convictions were against the weight of the evidence, and, in any event, that defendant's convictions of numerous violations of several provisions of the Lattingtown Village Code were multiplicitous, requiring that the multiplicitous convictions be reversed, the relevant counts dismissed, and the fines imposed thereon remitted.

A claim that charges are multiplicitous is preserved via an "appropriate motion to dismiss" (People v Cruz, 41 AD3d 893, 894 [2007]; see People v Cruz, 96 NY2d 857, 858 [2001]). Defendant made no such motion in the Justice Court. Nevertheless, in the interest of justice (People v Aarons, 296 AD2d 508, 508 [2002]), we reverse two of the three convictions of violating Lattingtown Village Code § 136-5 (B), destroying more than 12 trees of any size on a single property within a 12-month period, as multiplicitous, and dismiss those counts.

With respect to the remaining convictions, to the extent that defendant's claims are based on legal insufficiency, they are not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Gordon, 47 AD3d 833, 833-834 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d [*2]620, 621 [1983]), we find the evidence legally sufficient to establish defendant's guilt beyond a reasonable doubt of the remaining 82 counts. Insofar as defendant has invoked this Court's authority to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and according the appropriate deference to the Justice Court's credibility determinations, based on its particular opportunity to view the witnesses, hear the testimony, and observe demeanor (People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), it is our view that the remaining convictions were not against the weight of the evidence (People v Romero, 7 NY3d 633, 643-644 [2006]).

However, while each conviction is "punishable by a fine not to exceed $1,000" (Lattingtown Village Code § 136-8 [A]), under the particular facts and circumstances herein, we find the $1,000 fines imposed upon the convictions of 25 counts of violating Lattingtown Village Code § 136-5 (A) and the remaining count of violating Lattingtown Village Code § 136-5 (B) to be excessive and reduce the fine imposed on each of the 26 counts to $650.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: March 09, 2010