14-203. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JAMAL BROWN, def-app — Judgment of conviction (Frank P. Nervo, J. at plea, Erika M. Edwards, J. at sentencing), rendered July 25, 2013, affirmed.The accusatory instrument was not jurisdictionally defective. It charged all the elements of assault in the third degree (see Penal Law §120.00[1]), by alleging that defendant intentionally caused the victim a physical injury by striking him “about the head and face multiple times” with a “closed fist,” causing the victim “to suffer a broken jaw, broken cheek bone, swelling and substantial pain” (see People v. Henderson, 92 NY2d 677 [1999]; People v. Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]).Nor was the accusatory instrument rendered jurisdictionally defective by the circumstance that it alleged that the crime was committed on a certain date, and complainant’s subsequently received hospital bill indicated that complainant’s injuries occurred on a prior date (see People v. Peals, 143 AD3d 535 [2016], lv denied 28 NY3d 1149 [2017]). The date contained in complainant’s hospital bill was “an extrinsic, evidentiary fact not affecting the facial sufficiency” of the accusatory instrument (id.; see also Matter of Edward B., 80 NY2d 458, 462 [1992]). The court will not rely on external factors to create jurisdictional defects not evident from the face of the accusatory instrument (see People v. Konieczny, 2 NY3d 569, 576 [2004]).Defendant’s contention that his plea was not knowing, voluntary and intelligent is unpreserved for appellate review, since defendant had ample opportunity to raise his objections and his postallocution motion to withdraw his plea advanced entirely different grounds (see CPL 470.05[2]; People v. Crowder, 24 NY3d 1134, 1136 [2015]; People v. Williams, 27 NY3d 212 [2016]). We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find no basis for reversal. The only relief defendant requests is a dismissal in the interest of justice, and he expressly requests that this Court affirm his conviction if it does not dismiss the complaint. Since it cannot be said that no penological purpose would be served by reinstating the proceeding (see People v. Conceicao, 26 NY3d 375, 385 n [2015]; People v. Teron, 139 AD3d 450 [2016]), we would affirm (see People v. Diaz, 112 AD3d 423 [2013], lv denied 23 NY3d 1036 [2014]; People v. Schweitzer, 83 AD3d 503 [2011], lv denied 17 NY3d 800 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201717-351. DIEGO B. AGUILERA AND LUZ M. CARDONA, pet-res, v. RAFAEL PEREZ, res-app, -and- “JOHN DOE” AND “JANE DOE,” res — Final judgment (Jean T. Schneider, J.), entered July 11, 2016, affirmed, with $25 costs.Exercising our authority to review the record developed at the traverse hearing and render the judgment warranted by the facts (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492 [1983]), we find that petitioners met their burden of demonstrating that service of the underlying notice of termination was made in compliance with the “reasonable application” requirements of RPAPL §735(1). The process server’s testimony and log books established that the notice was affixed to appellant’s apartment door after a first attempt during nonbusiness hours (see generally Eight Assoc. v. Hynes, 102 AD2d 746 [1984], affd 65 NY2d 739 [1985]), and this evidence was corroborated by the testimony and photographs of the president of the HDFC (see Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 AD3d 475, 476 [2016]).Appellant’s contention that he was not served with a pretermination good cause notice (see generally 24 CFR 247.3) is improperly raised for the first time on appeal, and, in any event, is unavailing (see Matter of 322 W. 47th St. HDFC v. Loo, 153 AD3d 1143 [2017]; see also 433 W. Assoc. v. Murdock, 276 AD2d 360 [2000]). We have considered appellant’s remaining arguments and also find them to be unavailing (see Matter of 322 W. 47th St. HDFC v. Loo, supra).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201717-204. EAST VILLAGE RE HOLDINGS LLC, pet-lan-app, v. KELLY MCGOWAN, res-ten-app, -and — HAMID RAZIK, res-unt-res, -and- JOHN DOE AND JANE DOE, res-unt — Order (Michael L. Weisberg, J.), dated September 19, 2016, modified by denying tenant’s motion, reinstating the petition, and remanding the matter to Civil Court for further proceedings consistent with this decision; as modified, order affirmed, with $10 costs to tenant-appellant.Tenant’s preanswer motion to dismiss this illegal sublet holdover proceeding should have been denied. Landlord has stated a cause of action for possession based upon the rent stabilized tenant’s alleged assignment or sublet of the premises without permission (see 539 W 156, L.L.C. v. Hernandez, 55 Misc 3d 144[A], 2017 NY Slip Op 50663[U] [App Term, 1st Dept 2017]).The notice to cure, which was incorporated by reference in the notice of termination, was reasonable in view of the attendant circumstances, as it fairly stated the nature of landlord’s claim and the facts necessary to establish the existence of grounds for eviction (see Oxford Towers Co., LLC v. Leites, 41 AD3d 144, 144-145 [2007]), by alleging, inter alia, that tenant was living at a specified address other than the subject apartment and had breached a substantial obligation of her tenancy by unlawfully subletting or assigning the premises to an individual named Hamid Razik, without landlord’s consent and in violation of Real Property Law 226-b and Rent Stabilization Law 2524.3[a]and 2524.3[h] (see Amin Mgt LLC v. Martinez, 55 Misc 3d 144[A], 2017 NY Slip Op 50664[U] [App Term, 1st Dept 2017]; Perle v. Ross, 150 Misc 2d 20 [1991]).In reinstating the petition, we do not pass upon the landlord’s application for leave to conduct discovery and for payment of interim use and occupancy, matters not reached below. Our disposition is without prejudice to the landlord’s right to renew its application for such relief in the Civil Court (see West Waverly Equities Group v. Lieff, 190 Misc 2d 280 [2001]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201717-338. EMERALD 115 MOSHOLU, LLC, pet-lan-app, v. HAZLEANN SMITH, res-ten-res, -and- NEW YORK CITY HOUSING AUTHORITY, res-res, -and- SATHIYAARUBAN RAMASAMY, third-party-res-res — Order (Enedina Pilar Sanchez, J.), entered on or about July 28, 2015, affirmed, with $10 costs.Tenant Hazleann Smith was evicted from the subject apartment pursuant to a default final judgment entered in this nonpayment proceeding. Following a subsequent traverse hearing, Civil Court issued an order on April 27, 2015, vacating the default judgment and warrant of eviction, dismissing the nonpayment petition for lack of personal jurisdiction, and setting the matter down for a hearing to address the equities between tenant Smith and respondent Sathiyaaruban Ramasamy, the new tenant in occupancy of the subject premises. Significantly, landlord did not appeal from the April 27, 2015 order.Based upon the testimony presented at the ensuing restoration hearing, and considering Civil Court’s findings that tenant Smith was a senior citizen living on a public assistance rent subsidy with long-standing and substantial ties to the first-floor apartment, that prior to commencing the nonpayment proceeding, “it was undisputed that [landlord] was on notice that [tenant] would be out of the country,” and that respondent Ramasamy, who was previously a tenant in another apartment in the building, did not enter into an “arms length agreement” with landlord regarding the subject apartment, a “careful balancing of the equities” supported the court’s exercise of its discretionary authority in restoring tenant to possession (see Pomeroy Co. v. Thompson, 5 Misc 3d 51 [2004]; see also 2425 Lorillard LLC v. Jewels, 36 Misc 3d 144[A], 2012 NY Slip Op 51547[U] [App Term, 1st Dept 2012]). We note that Ramasamy’s one-year lease for the subject apartment has since expired and that he takes no position on the outcome of this appeal.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201714-289. THE PEOPLE OF THE STATE OF NEW YORK, res, v. LOIS FENNER, def-app — Judgment of conviction (John Cataldo, J.H.O.), rendered December 18, 2013, affirmed.The accusatory instrument charging defendant with public consumption of alcohol (see Administrative Code of City of NY §10-125[b]) was not jurisdictionally defective. Defendant’s intent to consume alcohol in public can be readily inferred from the sworn police allegations that defendant had an “open container of alcohol in public,” a “750 ML clear glass bottle of Bacardi Rum (clear liquid) that was previously opened/consumed and inside of a black plastic bag,” and that defendant “stated ‘that is mine, I bought it earlier from a liquor store’” (see Administrative Code §10-125[c]).The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court’s determinations concerning credibility. Based upon the credited testimony that defendant had a partially consumed bottle of rum, while talking loudly to a friend who was drinking from an open can of beer, and that defendant distanced herself from the bottle as the police officer approached, the court could rationally infer that defendant possessed an open container with the requisite “intent to drink or consume” the alcoholic beverage contained within it (see People v. Rivera, 53 Misc 3d 150[A], 2016 NY Slip Op 51671[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1188 [2017]; see also People v. Basono, 122 AD3d 553 [2014], lv denied 25 NY3d 1069 [2015]).Defendant’s challenge to the electronic recording of the proceeding below is unpreserved and no prejudice is apparent from the record (see People v. Wanass, 55 Misc 3d 97 [2017], lv denied 29 NY3d 1088 [2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201715-195. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JOHNNIE HARVEY, def-app — Judgment of conviction (Shawn T. Kelly, J.), rendered May 28, 2014, affirmed.The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court’s determinations concerning credibility. The credited police testimony established that defendant entered a New York City subway platform unlawfully by jumping over a turnstile without paying the required fare and without permission (see People v. Phillips, 53 Misc 3d 151[A], 2016 NY Slip Op 51693[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1149 [2017]; People v. Thiam, 16 Misc 3d 136[A], 2007 NY Slip Op 51665[U] [App Term, 1st Dept 2007], lv denied 9 NY3d 993 [2007]).Defendant’s argument that the trial court erred in modifying its Sandoval (People v. Sandoval, 34 NY2d 371 [1974]) ruling to permit reference to the circumstances of his 2010 arrest for disorderly conduct is unpreserved for appellate review (see CPL §470.05[2]), and we decline to review it in the interest of justice. As an alternative holding, we reject this argument on the merits, since the 2010 arrest was not the subject of the court’s Sandoval ruling. In any event, the court’s ruling, even if erroneous, was harmless in light of the court’s statement that such evidence would be considered, not as evidence of defendant’s propensity to commit crime, but for “the very limited purpose of fleshing out” the circumstances surrounding the injuries claimed to have been sustained by defendant during that arrest, injuries which, he now claims, prevented him from committing the underlying offense. We presume that the challenged evidence was evaluated and considered by the trial court only for that purpose (see People v. Limpert, 186 AD2d 1005, 1005 [1992], lv denied 81 NY2d 764 [1992]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201717-150. ALFRED MCKENZIE, pet-lan-app, v. AKANNI DAMAZIO, res-ten-app — Appeal from final judgment (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, dismissed, without costs, and without prejudice to renewal upon a proper record.Meaningful appellate review of the underlying final judgment is precluded in view of the incomplete nature of the trial transcript, which contains numerous “inaudible” gaps in the testimony of each witness (see Rogers v. Avgush, 17 Misc 3d 135[A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]; C.F.C. Commercial Flooring Contrs., Inc. v. Sachs, 9 Misc 3d 128[A], 2005 NY Slip Op 51524[U] [App Term, 9th and 10th Jud Dists 2005]). It is the appellant’s obligation to prepare and submit a record on appeal that complies with the requirements of CPLR 5526. Appeals that are not based upon a proper record must be dismissed (see Fernald v. Vinci, 13 AD3d 333 [2004]; see also Glicenstein v. Fust, 19 AD2d 841 [1963]). Our disposition is without prejudice to renewal of the appeal upon a reconstructed record.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 201716-190. THE PEOPLE OF THE STATE OF NEW YORK, res, v. WINSTON SMITH, def-app — Judgments of conviction (Herbert J. Adlerberg, J.H.O.), each rendered October 9, 2015, affirmed.The accusatory instruments were not jurisdictionally defective. The factual allegations in the respective instruments, namely, that defendant operated a motor vehicle “in front of 254 West 154 Street” on January 1, 2015, and “in front of 473 West 145th Street” on February 19, 2015, and that each location was a “public highway,” were sufficient to establish the public highway element of the charged Vehicle and Traffic Law offenses (see People v. Gerado, 55 Misc 3d 127[A], 2017 NY Slip Op 50344[U][App Term, 1st Dept 2017], lv denied 29 NY3d 1079 [2017]; People v. Cardona, 53 Misc 3d 137[A], 2016 NY Slip Op 51466[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1143 [2017]). The Vehicle and Traffic Law broadly defines a public highway as “[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way” (Vehicle and Traffic Law §134; People v. Beyer, 21 AD3d 592, 594 [2005], lv denied 6 NY3d 752 [2005]).The court properly denied, without a hearing, defendant’s motion under docket number 2015NY005966 to suppress police observations and Department of Motor Vehicle records. Defendant’s motion papers, which simply allege that at the time in question he “had not been engaged in any observable unlawful or improper behavior” or possessed “any contraband or illegal items in plain or open view,” did not raise a factual issue to be resolved at a hearing (see People v. Garay, 25 NY3d 62, 72 [2015], cert denied Garay v. N.Y., 136 S.Ct. 501 [2015]; People v. Mendoza, 82 NY2d 415, 427 [1993]). Defendant failed to either controvert the specific information that was provided by the People or to provide any other basis for suppression (see People v. Lawson-Varsier, 138 AD3d 486 [2016]; People v. Arokium, 33 AD3d 458, 459 [2006], lv denied 8 NY3d 878 [2007]). In any event, Department of Motor Vehicle records are not suppressible (see People v. Tolentino, 14 NY3d 382, 387 [2010], cert dismissed 563 US 123 [2011]), nor are the police officer’s observations of defendant driving on a public highway (see People v. Weaver, 12 NY3d 433, 440 [2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.November 29, 2017
