Aaron C. DePass, for appellant. Quatela Chimeri PLLC (Alexander E. Sendrowitz of counsel), for respondent.

Appeal from two judgments of the District Court of Suffolk County, Sixth District (James F. Matthews, J.), rendered June 1, 2023. The judgments convicted defendant, after a nonjury trial, of maintaining a building or structure without a building permit in violation of Code of the Town of Brookhaven § 85-12 (A) and using a building without a certificate of occupancy in violation of Code of the Town of Brookhaven § 85-15, respectively, and imposed sentences. The appeal brings up for review so much of an order of that court (James P. Flanagan, J.) dated May 20, 2020 as denied the branch of defendant's motion seeking to dismiss the accusatory instruments as jurisdictionally defective, and so much of an order of that court (James P. Flanagan, J.) dated December 16, 2021 as denied, after a hearing, the branch of defendant's motion seeking to suppress certain evidence.

ORDERED that the judgments of conviction are affirmed.

Insofar as is relevant to this appeal, on June 1, 2023, following a nonjury trial, the District Court (James F. Matthews, J.) convicted defendant of two charges, to wit, maintaining two basement apartments without a building permit in violation of Code of Town of Brookhaven (Code) § 85-12 (A) and maintaining two basement apartments without a certificate of occupancy in violation of Code § 85-15, respectively, after a Town inspector observed two basement apartments during a search of the subject premises on August 11, 2019.

On appeal, defendant contends that an order of the District Court (James P. Flanagan, J.) dated May 20, 2020 improperly denied the branch of defendant's motion seeking to dismiss the [*2]accusatory instruments as facially insufficient; that an order of the District Court (James P. Flanagan, J.) dated December 16, 2021 improperly denied, after a hearing, the branch of defendant's motion seeking to suppress evidence of the Town of Brookhaven (Town) inspector's search of the basement apartments; that the District Court (James F. Matthews, J.) improvidently denied defendant's motion to reopen the suppression hearing after receiving evidence at trial; that the District Court improvidently admitted at trial a witness's prior hearing testimony; that the District Court erred in overruling defendant's objection regarding the Town inspector's testimony that the Town inspector had received permission from a tenant to search the basement; that the judgments should be reversed because they were based on legally insufficient evidence; and that the People violated defendant's rights under Brady v Maryland (373 US 83 [1963]) and People v Rosario (9 NY2d 286 [1961]).

Code § 85-12 (A) states, in part, that "[n]o building or structure shall be erected, altered or maintained until a building permit or universal design permit therefor has been issued by the Chief Building Inspector." Code § 85-15 states, in part, that "no building or structure hereafter erected or altered shall be used or changed in use until a certificate of occupancy shall have been issued by the Chief Building Inspector, stating that the building or structure or proposed use thereof complies with the provisions of this chapter." The factual portions of the two nearly identical informations charging the respective offenses alleged, based on the deponent Town building inspector's search of the Town Clerk's records, that defendant owned the subject premises; that deponent observed two basement apartments at the subject premises with each containing a kitchen/living room, bathroom, and bedroom; and that, upon a search of the Town building department records, the deponent did not find either a building permit or a certificate of occupancy on file for the above apartments. We find that these informations set forth nonhearsay, factual allegations of an evidentiary character that establish, if true, every element of maintaining a building without a building permit (see People v 237 Berkshire, LLC, 81 Misc 3d 134[A], 2023 NY Slip Op 51384[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]), and every element of using a building without a certificate of occupancy (see People v Pitti, 63 Misc 3d 164[A], 2019 NY Slip Op 50935[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]), and defendant's commission thereof. Thus, the accusatory instruments were facially sufficient, and the District Court properly denied defendant's motion seeking to dismiss them as jurisdictionally defective (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 NY3d 259, 261-263 [2007]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]).

Following a Dunaway hearing, the District Court (James P. Flanagan, J.), by order dated December 16, 2021, denied the branch of defendant's motion seeking to suppress the evidence derived from the Town inspector's search of the basement^[FN1] based on what the court found to be Tyler Meoli's credible testimony that he was a tenant on the day of the inspection and that he granted the Town inspector permission to enter the premises before accompanying her on a walkthrough of the basement. The court rejected defendant's testimony that Mr. Meoli was no [*3]longer a tenant as self-serving and her photographic and video evidence as inconclusive with regards to Mr. Meoli's status as a tenant. The court also rejected defendant's daughter's testimony as incredible.

When a defendant moves to suppress evidence recovered from a search based on consent, the prosecution bears the heavy burden of proving the voluntariness of the consent (see People v Cabrera, 41 NY3d 35, 54 [2023]; People v Kuhn, 33 NY2d 203, 208 [1973]; People v Whitehurst, 25 NY2d 389, 391 [1969]). Once the prosecution satisfies this burden, defendant has the ultimate burden of proving, by a preponderance of the evidence, that the evidence should not be used against her (see People v Berrios, 28 NY2d 361, 367 [1971]; People v Knight, 205 AD3d 928, 929 [2022]). "The credibility determinations of a hearing court following a suppression hearing are accorded great deference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Clements, 221 AD3d 1023, 1025 [2023] [internal quotation marks omitted]; see People v Lesiuk, 81 NY2d 485, 490 [1993]; People v Prochilo, 41 NY2d 759, 761 [1977]).

A government official "may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question" (People v Cosme, 48 NY2d 286, 290 [1979]; see People v Williams, 210 AD3d 913, 913 [2022]). "Where a person with ostensible authority consents to [a government official's] presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v New York (445 US 573 [1980]) is not violated" (People v Clark, 194 AD3d 948, 949-950 [2021] [internal quotation marks omitted]; see People v Gonzalez, 88 NY2d 289, 295 [1996]; see also Illinois v Rodriguez, 497 US 177, 179, 181, 188-189 [1990]). Consent can be established by conduct as well as word (see Whitehurst, 25 NY2d at 392; Williams, 210 AD3d at 913). Here, the court found that the People met their burden of establishing that consent to the warrantless search of the subject house was given by Mr. Meoli, a tenant, who not only granted permission, but also accompanied the inspector on the walkthrough (see Clark, 194 AD3d at 950; People v Xochimitl, 147 AD3d 793 [2017]). In exercising our own factual review power, we find no basis to disturb the District Court's credibility determinations (see Clements, 221 AD3d at 1025). Thus, the court properly denied suppression of the evidence derived from the inspector's search of the basement.

"[D]efendant had no right to relitigate at trial the validity of [the] consent to search [the basement]," (People v Brinkley, 174 AD3d 1159, 1165 [2019]) and, therefore, the People had no burden to prove at trial that the consent to search was valid. Moreover, the District Court did not improvidently exercise its discretion in denying defendant's motion to reopen the suppression hearing after the close of the trial evidence based on evidence that defendant created and had in her possession long before the hearing took place (see CPL 710.40 [4]; People v Dawson, 69 Misc 3d 146[A], 2020 NY Slip Op 51414[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). Likewise, defendant failed to demonstrate that the proffered new evidence, which mirrored the evidence already elicited during the hearing, was likely to affect the original determination (see People v Clark, 88 NY2d 552, 555 [1996]; People v Quigley, 161 AD3d 780 [2018]; see also CPL 710.40 [4]).

Defendant failed to preserve her contention that the District Court improperly allowed the [*4]People to admit Meoli's hearing testimony at trial in violation of CPL 670.10 (1) (see People v Slaughter, 163 AD2d 342, 343 [1990]), and we decline to review it in the interest of justice.

Defendant further contends that the People never established a violation of Code §§ 85-12 (A) or 85-15 because the People failed to present evidence that the building or structure had, at any time, been altered or modified. To the extent that this argument can be construed as a contention that the evidence was legally insufficient, such contention is unpreserved for appellate review since the defense did not raise it in the District Court (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). Nevertheless, to the extent that the argument can be construed as a contention that the verdicts were against the weight of the evidence, there is no preservation requirement associated with such a contention, and we must determine whether all of the elements of the offenses charged were proven beyond a reasonable doubt as part of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Walker, 188 AD3d 1274, 1275 [2020]). According great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), while weighing the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony (see Bleakley, 69 NY2d at 495; People v Zephyrin, 52 AD3d 543 [2008]), we find that an acquittal of either charge would not have been unreasonable (see Danielson, 9 NY3d at 348; cf. People v Hawkins, 196 AD3d 505, 507 [2021]).

To establish a violation of Code § 85-12 (A), the People here had to show that defendant maintained two apartments in her basement without a building permit therefor. Upon the exercise of this court's factual review power (see CPL 470.15 [5]; Danielson, 9 NY3d at 348), we find that defendant's conviction was in accordance with the weight of the evidence. The Town inspector testified that there were no permits for the two basement apartments after searching the Town's building records for the property. Such testimony is competent evidence of the content of the building's records, or lack thereof (see People v Shaifer, 47 Misc 3d 139[A], 2015 NY Slip Op 50599[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v M. Santulli, LLC, 29 Misc 3d 54, 59-60 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). Defendant's testimony that she never altered the basement since taking ownership of the house did not refute the inspector's testimony that no building permit for the apartments ever existed, as the prosecution was not based on any alleged alteration of the building. A property owner can violate Code § 85-12 (A) by erecting or maintaining a building without a building permit, or in violation of a granted permit; by altering a building without a permit; and by maintaining a building that was altered without a permit. Thus, defendant's conviction for not having a building permit for the basement apartments was in accordance with the weight of the evidence, without proof of any alteration to the building.

We note that the instant case is distinguishable from the case of People v 237 Berkshire, LLC (81 Misc 3d 134[A], 2023 NY Slip Op 51384[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]), as, there, the People prosecuted the defendant under a theory that the defendant maintained a building that had in fact been altered without a permit, without submitting any proof of such alteration, whereas here, as indicated above, the People never restricted themselves [*5]to that limited theory (see People v Grega, 72 NY2d 489 [1988]; People v Spann, 56 NY2d 469 [1982]; People v Notice, 77 Misc 3d 134[A], 2022 NY Slip Op 51263[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Consequently, unlike in 237 Berkshire, LLC, it is irrelevant that there was no proof here of what the building looked like at some time before the inspection since there is no allegation that the building was ever altered. Rather, here, the prosecution alleged that no building permit ever existed for the two apartments.

To establish a violation of Code § 85-15, the People had to show that the basement apartments had no certificate of occupancy on file. Upon the exercise of this court's factual review power (see CPL 470.15 [5]; Danielson, 9 NY3d at 348), we find that defendant's conviction was in accordance with the weight of the evidence. Here, the inspector testified that "the finished basement and the apartments did not have a certificate of occupancy at the time." This testimony is competent evidence of the content of the building's records, or lack thereof (see Shaifer, 2015 NY Slip Op 50599[U], *2; M. Santulli, LLC, 29 Misc 3d at 59-60). Both the People and defendant submitted testimonial and pictorial evidence of the finished apartments. Nothing in the record refuted the inspector's testimony that there was no certificate of occupancy for the apartments. Thus, defendant's conviction for not having a certificate of occupancy for the basement apartments was not against the weight of the evidence.

By failing to make a timely objection to the People's alleged nondisclosure when first discovered, defendant failed to preserve her claims that the prosecution violated her rights under Brady and Rosario when they failed to disclose that Meoli would testify that he consented to the inspector's search of the basement (see People v Ennis, 11 NY3d 403, 414 n 2 [2008]; People v Rogelio, 79 NY2d 843, 844 [1992]; People v Kelley, 73 AD3d 809, 810 [2010]), and we decline to review them in the interest of justice. Were we to consider the merits, we would find defendant's contentions to be without merit.

We have considered defendant's remaining contentions on appeal and find them to be without merit.

Accordingly, the judgments of conviction are affirmed.

DRISCOLL, J.P. and CONWAY, J., concur.

GARGUILO, J, taking no part.