Appeal from judgments of the Justice Court of the Village of Massapequa Park, Nassau County (Steven G. Leventhal, J.), rendered April 16, 2010. The judgments convicted defendant, after a nonjury trial, of two charges of maintaining an illegal occupancy and sentenced him to pay fines of $3,500 and $7,000, respectively.

ORDERED that the judgments of conviction are affirmed.

Defendant was charged in two separate accusatory instruments with maintaining an illegal occupancy at his home (the premises) on two separate occasions, in that on December 4, 2008 and April 23, 2009, respectively, he changed the use of a one-family dwelling to a two-family dwelling without authorization, in violation of Massapequa Park Village Code § 189-4.

Defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is not preserved for appellate review, as no objections on this ground were made at trial (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the evidence established defendant's guilt of both charges of maintaining an illegal occupancy beyond a reasonable doubt. The People proffered undisputed evidence that [*2]the premises had two separate entrances and that defendant used the front door and the other occupant used the side door, which opened to the back lower level of the dwelling where the other occupant resided. The lower level, which had a separate bedroom, a bathroom with a shower, and a galley kitchen, was connected to the main level of the house by a staircase, but there was a door at the top of the staircase which had a lock on the side facing the lower level. Defendant also failed to rebut, and in fact offered testimony that supported, the People's showing that there were two cars - one belonging to defendant and the other to the other occupant - parked at the premises throughout the duration of the other occupant's residence. One of the People's witnesses testified that the other occupant had acknowledged to him that he was renting the premises. Although defendant attempted to characterize the monthly payments of roughly $500 he had received from the other occupant as a contribution towards household expenses, rather than rent, defendant had retained unfettered and exclusive control over the money and could not articulate how he had allocated it.

Defendant's insistence that he and the other occupant were residing at the premises as a "family" is unavailing, as he failed to show credible evidence that he and the other occupant, who are not related by blood or marriage, lived and cooked together as a single housekeeping unit (see Massapequa Park Village Code § 154-2). In fact, defendant himself acknowledged that he and the other occupant "rarely, if ever" ate together.

Contrary to defendant's contentions, the illegal occupancy law does not impermissibly shift the burden to a defendant to establish his innocence in violation of the Due Process Clause. The factors set forth in the illegal occupancy ordinance provide reasonable indicia that a one-family dwelling unit is being occupied by more than one family. Moreover, defendant was entitled to rebut the presumption of an illegal occupancy which arose when the People showed that there were two separate entrances to the premises as well as two vehicles parked there belonging to two unrelated persons (see Massapequa Park Village Code § 189-4 [A]), but failed to do so. Thus, the rebuttable presumption is valid and the ordinance does not offend due process (see Morrissey v Apostol, 75 AD3d 993 [2010]; Matter of Unification Theol. Seminary v City of Poughkeepsie, 201 AD2d 484 [1994]).

Defendant's contention that the ordinance violates the Equal Protection Clause by permitting arbitrary enforcement based upon unsubstantiated complaints is also without merit. The ordinance does not authorize the issuance of summonses based on unfounded complaints by residents but, instead, pursuant to documented violations made during investigations by the Village Building Inspector (see Massapequa Park Village Code § 189-6 [A]). Defendant also failed to show that the illegal occupancy ordinance was being selectively enforced against him in violation of the Equal Protection Clause, as he did not show that he was treated differently from married couples similarly situated to him or that he was "singled out" for prosecution because of some arbitrary classification (see People v Blount, 90 NY2d 998, 999 [1997]).

Defendant received a fine of $3,500 for the first count and a fine of $7,000 for the continued violation, both of which are the minimum fines set forth in the ordinance (see Massapequa Park Village Code § 189-5). In light of defendant's failure to cure and his continued profit from the violation between the first charge in December 2008 and the second charge in April 2009, the total fine imposed was justified (see People v Obadiah, 2008 NY Slip Op 52227[U] [App Term, 9th & 10th Jud Dists 2008]). [*3]

Accordingly, the judgments of conviction are affirmed.

Tanenbaum, J.P., Nicolai and Molia, JJ., concur.
Decision Date: December 27, 2011