Appeal from a judgment of the Justice Court of the Village of Sea Cliff, Nassau County (John P. Reali, J.), rendered October 26, 2011. The judgment, insofar as appealed from, convicted defendants Mario Larrea, Action Motors, and Sea Cliff Equities, LLC, after a nonjury trial, of two counts of violating the conditions of a special permit granted by a Board of Zoning Appeals by storing a vehicle and parts in a "green belt" area of their commercial premises, three counts of violating that special permit by permitting automobiles to be parked on adjacent streets, eight counts of violating that special permit by permitting automobiles to be parked outside the [*2]building or northerly area of the premises, one count of violating that special permit by storing parts outside, two counts of violating that special permit by dismantling a vehicle outside, four counts of violating that special permit by selling vehicles, and one count of violating that special permit by permitting repairs of a vehicle outside.

ORDERED that the judgment of conviction, insofar as appealed from, is modified, on the law, by vacating the convictions of defendants Mario Larrea, Action Motors, and Sea Cliff Equities, LLC on counts 1, 9, 17, 19, 25, 41, 51, 55, and 63 of the accusatory instrument and by providing that those counts of the accusatory instrument are dismissed and the fines therefor, if paid, are remitted; as so modified, the judgment of conviction, insofar as appealed from, is affirmed.

In an accusatory instrument, defendants were charged with 71 counts of violating section 138-1403 (C) of the Village of Sea Cliff Code in connection with their ownership and operation of an automobile body shop in the village, in violation of conditions of a special permit granted by the Board of Zoning Appeals. They were found guilty of 21 of these counts. Mario Larrea, Action Motors and Sea Cliff Equities, LLC (defendants) have appealed. Defendant A-1 Collision has not appealed.

The convictions on counts 1 and 25, charging defendants with storing a vehicle and/or parts in a "green belt" area of the premises on September 30 and October 13, 2009, are vacated, since the proof was insufficient as a matter of law to satisfy the People's burden of showing that cars or parts had been stored there. Condition 4 of the special permit proscribed storage of any type rather than mere placement of things in the "green belt" area. There is no definition of "storage" in the Village of Sea Cliff Code. However, it has been observed that "storage" connotes a "certain degree of permanency" (Matter of Monument Garage Corp. v Levy, 266 NY 339, 344 [1935]; see People v Sikorsky, 195 Misc 2d 534, 536 [App Term, 9th & 10th Jud Dists, 2002] ["the inspector's testimony, that he observed the same vehicles (some of which appeared to be inoperable) in approximately the same location on three separate dates, established that said vehicles were stored, not parked, on defendant's lot"]). Furthermore, the "green belt" area of the premises was shown to have extended from the side of the building to the eastern boundary. The photographs constituting the evidence underlying these counts charging defendants with having a vehicle in that area did not establish such storage as a fact, since the vehicles may well have extended only as far as the beginning edge of such area. With regard to the photograph which showed the placement of a step-stool in the "green belt" area, there was no proof that it was left there for a significant amount of time. Thus, with regard to counts 1 and 25, the proof, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), failed to provide "a valid line of reasoning and permissible inferences from which a rational [fact finder] could have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation mark omitted]).

The convictions on count 3, for parking on adjacent streets on September 30, 2009, are not disturbed, in view of the testimony that a pictured orange car on Cromwell Street belonged to an employee because the man was there opening up the shop on a daily basis.

The convictions on count 7, for parking outside the building or northerly fenced area on September 30, 2009, are not disturbed, in view of the photographs showing vehicles undergoing repair parked in the southeasterly section of the premises. [*3]

The convictions on count 8, for parking on adjacent streets on October 1, 2009, are not disturbed, in view of the evidence adduced at trial.

The convictions on count 9, for parking outside the building or northerly fenced area on October 1, 2009, are vacated, in the absence of proof that the vehicles had been parked there pending repair. Condition 18 of the special permit reads, "(18) All automobiles and other vehicles parked or stored at the premises pending repair shall be kept inside the building or within the northerly fenced area. No such automobiles or other vehicles shall be parked or stored in the parking area located in the southeast area of the premises either during the day or overnight."

The convictions on count 15, for parking outside the building or northerly fenced area on October 6, 2009, are not disturbed, in view of the photographs depicting damaged vehicles in need of repair in the southeast section of the property.

The convictions on count 17, for parking on adjacent streets on October 7, 2009, are vacated. Although a photograph showed that a car had been parked in front of defendants' premises, this evidence was insufficient to establish the existence of a relationship between the person who had parked the car and the premises.

The convictions on count 19, for storing parts outside on October 7, 2009, are vacated for insufficient proof of storage (see 34 NY Jur 2d, Criminal Law: Procedure § 2375, at 90).

The convictions on count 24, for parking outside the building or northerly fenced area on October 11, 2009, are not disturbed in light of the photograph showing two vehicles in obvious need of repair parked outside the building and northerly fenced area.

The convictions on count 25, for a violation on October 13, 2009, are vacated, as already indicated, for lack of proof of storage.

The convictions on count 41, for parking outside the building or northerly fenced area on October 26, 2009, are vacated for insufficient proof that the two vehicles depicted had been parked outside the building or northerly fenced area pending repair. Neither vehicle showed obvious signs of damage. The testimony adduced at trial showed that the occupants of the truck left its motor running as they briefly went inside the building on the premises. While the white car depicted in a photograph had its driver's door open and the front hood open with a man leaning inside it, this was insufficient to prove that this vehicle was "pending repair."

The convictions on count 45, for dismantling a vehicle outside on November 17, 2009, are not disturbed. The proof of the dismantling of a vehicle outside was established by testimony and a photograph showing a red truck supported by a jack with a wheel and front panel removed.

The convictions on count 51, for dismantling a vehicle outside on November 18, 2009, are vacated, as the evidence with respect thereto did not establish defendants' guilt beyond a reasonable doubt.

The convictions on counts 54, 58, 62 and 70, for selling vehicles on November 18, 25, 27 and 28, 2009, are not disturbed. There was not only testimony of a "For Sale" sign remaining on a particular car, but also the existence of a sign posted on the building issued by New York State for resale of vehicles (compare People v Miller, 281 NY 751, 752 [1939] [evidence deemed insufficient where the defendant was charged with, among other things, displaying a sign in his store window which might reasonably be calculated to deceive a person to believe that all the meats offered for sale were kosher]). [*4]

The convictions on counts 55 and 63, for parking outside the building or northerly fenced area on November 18 and 27, 2009, are vacated for insufficient proof that the depicted vehicles had been parked pending repair.

The convictions on count 69, for doing repairs outside in violation of condition 16 of the special permit on November 28, 2009, are not disturbed in view of the photograph showing a man working at the red truck.

The convictions on count 71, for parking outside the building or northerly fenced area on November 28, 2009, are not disturbed, since a photograph established the occurrence of repairs on that date.

We note that defendant Sea Cliff Equities, LLC cannot avoid responsibility based on its status as a corporation (see Penal Law §§ 10.00 [7]; 20.20; 14A NY Jur 2d, Business Relationships § 515, at 24, 25; Donnino, Practice Commentary, 39 McKinney's Cons Laws of NY, Penal Law § 20.20, at 199) or its status as the owner of the premises (see People v Scott, 26 NY2d 286, 289 [1970]; cf. Real Property Law § 231). The proof was also ample to establish defendant Larrea's guilt as an individual (see Penal Law § 20.25; People v Sakow, 45 NY2d 131, 135 [1978] ["there was adequate proof from which it could be inferred that, during the years 1972 through 1975, [defendant] was the active manager and dominant controlling force in a group of corporations among whom title to the buildings was shuffled . . ."]; People v Concert Connection, 211 AD2d 310, 320 [1995]; People v Sobel, 87 AD2d 656, 656-657 [1982]; 16 NY Jur 2d, Business Relationships § 2272; 35 NY Jur 2d, Criminal Law: Substantive Principles and Offenses § 63; cf. Limited Liability Company Law § 609). The evidence showed that Larrea was the owner and sole member of Sea Cliff Equities, LLC, that he had resisted service of a ticket upon him for parking on an adjacent street on September 29, 2009 (the day before the first of the subject charges), that he had then told the Village Superintendent of Buildings that he should not be on or near his property, that he had threatened the Superintendent in his capacity as a worker for the Village, and that the police had come to his shop on two other occasions on Village business to arrest him.

We modify the judgment, insofar as appealed from, accordingly.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: September 05, 2013