[*1]
People v Marianetti
2011 NY Slip Op 51567(U) [32 Misc 3d 1233(A)]
Decided on August 17, 2011
Just Ct, Town Of Webster, Monroe County
DiSalvo, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 17, 2011
Just Ct, Town of Webster, Monroe County


The People of the State of New York, Plaintiff,

against

Lisa M. Marianetti, Defendant.




10070149



Appearances:

Raja N. Sekharan, Esq., Deputy Town Attorney, Town of Webster, New York

James S. Hinman, Esq., Attorney for Defendant.

Thomas J. DiSalvo, J.

History of the Case.

Thomas J. DiSalvo, J. The defendant is the owner of property located at 1813 Ridge

Road in the Town of Webster and County of Monroe. She purchased the property in question on

or about April 7, 2009. In June of 2009 she purchased an A-Verdi storage container which she

had delivered and placed in her backyard. At that time the Webster Town Code did not contain

any ordinances concerning portable storage containers. In January of 2010 the Webster Town

Board amended the Town Code in order to regulate the use said of portable storage containers.[FN1] [*2]

On July 13, 2010 the defendant was charged with a violation of Webster Town Code [W.T.C.]

Section 225-48.1(A), i.e. failure to obtain a permit for the placement of a portable storage

container on her property. The defendant previously filed a motion for dismissal pursuant to

C.P.L. 170.30(f), arguing that the charge should be dismissed on the basis that since the "A

Verdi storage container" [as same was referred to in defendant's Affirmation] was on the

premises prior to the enactment of the new law, it amounted to a protected pre-existing use.

Defendant's motion was dismissed as set out in (People v. Marianetti, 29 Misc 3d 1228[A], 2010

NY Slip Op. 52084[U] [2010]), since it did not meet the criterion of substantial pre-existing use

or a legal pre-existing use.

On August 12, 2011 a bench trial was conducted in this matter. The People called [*3]

five witnesses, including the town supervisor, the code enforcement officer, the building

inspector and two neighbors adjacent to the defendant's property. At the conclusion of the

People's case the defendant made a motion for a trial order of dismissal pursuant to C.P.L.

290.10(1). The court reserved on said motion. The defense called one witness, to wit: the

defendant herself. Upon resting defendant's case, defense counsel renewed his motion for a

trial order of dismissal.

Issue Presented.

Was the trial evidence presented by the People legally sufficient as defined by C.P.L.

70.10(1), such that it would survive a motion for a trial order of dismissal?

Legal Analysis.

"In evaluating this motion, the evidence must be viewed in the light most favorable to the

People with the review limited solely to the legal sufficiency of the evidence as defined in

CPL 70.10(1) ( see, People v. Singh, 191 AD2d 731, 595 N.Y.S.2d 510, lv. denied

81 NY2d 1020, 600 N.Y.S.2d 208, 616 N.E.2d 865)."[FN2] However, this does not mean that in

order to survive a trial order of dismissal the evidence must have established guilt beyond a

reasonable doubt as required by C.P.L. 70.20, since that is the standard required to convict after

trial. See Holtzman v. Bonomo, 93 AD2d 574, 462 N.Y.S.2d 690 [1983].

The defense contends that the unit placed on the defendant's property was not a portable

storage container. Instead it is argued that said storage container has the same characteristics of [*4]

various items defined in Webster Town Code Section 225-3. Arguably, the item in question does

have some of the same characteristics as an "Accessory Building"[FN3], a "Structure"[FN4], an "Accessory Structure"[FN5], a "Temporary Structure"[FN6] and a shed. In fact the defendant argues that the unit is

more like a building, a structure or a shed than a portable storage container. The defendant's

argument is based on the contention that the container is not portable, because she contends that

it cannot be easily moved. The unit was described by the code enforcement officer as being forty

feet long by nine feet tall and by eight to nine feet wide. During the testimony of the defendant

she indicated that she stored personal property such as her lawn mower, snow plow and tools in

said container.

The People entered various pictures of the storage container taken from various angles

into evidence. The pictures depicted a large metal container with a roof, four sides and a floor,

which was placed on the ground, without a foundation, in the rear of the defendant's home. It is

uncontroverted that the storage container was delivered to the defendant's home by a flat bed [*5]

truck after it was purchased by the said defendant. Defendant contends that since it cannot be

removed from the premises without a flat bed truck equipped with a crane, the storage container

cannot be considered portable. This is based on the defendant's dictionary definition of portable

as being "easily movable". However, the word "easily" is a relative term dependent on the item

that needs to be moved and the methods available for such move. Portable storage containers in

general are marketed on the concept that they can be installed and removed easily by the portable

storage container companies. Rather than the concept of "easily movable", the general design of

an item is the more helpful characteristic in determining if a particular item is portable. A house

may be easily moved when a trained house mover has the appropriate number of personnel and the right equipment. However, a house is not constructed with the intent that it be moved from

time to time. Such a structure could not be considered portable. On the other hand a mobile

home is constructed with the idea that it could be easily moved from time to time as required. As

a result, a mobile home could be considered portable. Just because a storage container has

characteristics common to buildings, structures or sheds, such as walls, a roof and a floor, that

does not mean it cannot be a portable storage container.

Conclusion.

The evidence presented by the people, when viewed in the light most favorable to the

People, established that the defendant was the owner real property commonly known as 1813

Ridge Road, which is located in the Town of Webster, County of Monroe; that the Town of

Webster passed a law regulating the placement of portable storage containers on property located

in the town in January of 2010; that the storage container herein was used for storage by the

defendant; that the storage container located on the defendant's property was in fact located on [*6]

the defendant's property subsequent to the passage of the new law requiring the issuance of a

permit by the Town of Webster Building Department prior to the placement of a storage

container on one's property; That the defendant did not obtain said permit as required. That

the defendant's storage container has all the characteristics of a portable storage unit, such as

looks, usage and movability Thus the defendant's trial order of dismissal is hereby denied. This

constitutes the decision and order of the court.

Dated: August 17, 2011

Webster, New York

________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice

Footnotes


Footnote 1: Webster Town Code Section 224.48.1 is entitled "Portable storage containers (PSCs)" and is set out below as follows:

A. No PSCs may be used on any property within the Town of Webster unless a PSC permit has been issued by the Town of Webster Building Department in accordance with this section.

B. A PSC permit may be obtained for the following purposes and time limits:

(1)Temporary storage for a period not to exceed seven days. No more than two permits may be issued per calendar year for this purpose.

(2)When a building permit has been issued and the PSC is used to store construction materials or household goods. The PSC must be removed within 14 days of the issuance of the certificate of occupancy, certificate of compliance, or expiration of permit, whichever is soonest.

(3)When interior or exterior renovations are taking place that do not require a building permit, a PSC may be used to store construction materials or household goods. A PSC permit may be issued for up to six months. One extension of up to three months may be granted.

C. Location of PSC. PSCs may be located in the side or rear yard. A PSC located in the front yard must be placed in the driveway, outside of the right-of-way, with the approval of the Zoning Board of Appeals.

D. The total number of PSCs shall not exceed three per parcel, and the total square footage of all PSCs per parcel shall not exceed 320 square feet.

E. Applications for a PSC permit may be obtained from the Town of Webster Building Department. The application shall include a copy of the instrument survey or a sketch of the property showing the proposed location of the PSC, the estimated time on property, and size and number of units.

Footnote 2: C.P.L. 70.10(1) states in pertinent part that " Legally sufficient evidence'" means competent evidence which if accepted as true, would establish every element of an offense charged and the defendant's commission thereof ...."

Footnote 3: An "Accessory Building" is defined in W.T.C. Section 225-3 as "A detached building or structure, the use of which is incidental to that of a main or principal building or structure and located on the same lot therewith." An "Accessory Use" is further defined therein as "A use

customarily incidental and subordinate to the principal use and located on the same lot with the

principal use."

Footnote 4:A "Structure" is defined in W.T.C. Section 225-3 as "Anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground, but not to include light posts, mailboxes, flagpoles, fences, and swing sets. Such structures shall include sun parlors, garages, covered porches and covered walks, terraces,

entrances and balconies, whether enclosed or unenclosed, but shall not include steps, chimneys less than 30 inches or overhanging eves or cantilevers under two feet in width."

Footnote 5: An "Accessory Structure" is defined in W.T.C. Section 225-3 as "A structure customarily incidental and subordinate to the principal building and located on the same lot."

Footnote 6: A "Temporary Structure" is defined in W.T.C. Section 225-3 as "Any structure not permanently affixed to the ground."