Paulette Louise Brissett, appellant pro se.2016-921 K C. MATTER OF ARSCOTT — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 17, 2015. The order dismissed, without prejudice, a petition for a name change.ORDERED that, on the court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [c]); and it is further,ORDERED that the order is affirmed, without costs.In this proceeding, petitioner, an adult, seeks to change her name from several variations of Paulette Louise Brissett Arscott to Paulette Brissitt Louise Wilson Suzie Stewart. In support of her application, petitioner submitted, among other things, copies of her United States passport, a birth registration form issued in Jamaica, her New York State driver’s license, her social security card, her marriage certificate, a judgment of divorce issued to her and her New York City Taxi and Limousine Commission FHV dispatch driver’s license. Each document contained a variation of petitioner’s name. In her application, petitioner stated, without explanation, that she had made seven previous applications to change her name and that her purpose in seeking a name change was to add her biological father’s surname of Stewart to her name. The Civil Court dismissed the petition, without prejudice and with leave to file another application without paying an application fee, setting forth details of petitioner’s seven prior name change applications, as well as the source of family names, other than that of her biological father, which petitioner wanted included in her name.While the right to change one’s name is established under both common law and by statute (see Matter of Halligan, 46 AD2d 170 [1974]; Matter of Cortes, 19 Misc 3d 56 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Smith v. United States Cas. Co., 197 NY 420 [1910]), where application is made pursuant to statute, “the court is not a mere rubber stamp” (Matter of Beals, 40 Misc 3d 61, 62 [App Term, 1st Dept 2013]). Even though the details as to petitioner’s seven prior name change applications, as well as the source of family names, other than that of her biological father, which petitioner wanted included in her name, did not fall within the categories of information petitioner was required to provide to the court in her petition (see Civil Rights Law §61 [1]), they were valid subjects of inquiry for the court. In view of the foregoing, we conclude that the Civil Court did not improvidently exercise its discretion in dismissing the petition without prejudice.Accordingly, the order is affirmed.ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.November 16, 2017By: Pesce, P.J., Aliotta, Solomon, JJ.2017-823 Q CR. THE PEOPLE v. ARANA, SHERLOCK — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered March 27, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-825 Q CR. THE PEOPLE v. WEBB, KENJI — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered March 27, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the Legal Aid Society is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-1127 K CR. THE PEOPLE v. POWELL, MARVA — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered April 26, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-1262 Q CR. THE PEOPLE v. DEBEK, ISABELA — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered May 15, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-1269 K CR. THE PEOPLE v. VANCOL, JEAN — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered May 18, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-1565 K CR. THE PEOPLE v. FOREMAN, JEREMY — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered July 19, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 20172017-1899 Q CR. THE PEOPLE v. FORD, BARSHAWN — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered September 13, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.November 16, 2017Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Tolbert, Brands, JJ.Nassau County Legal Aid Society (Tammy Feman, Dori Cohen of counsel), for appellant.Nassau County District Attorney (Andrea M. DiGregorio, Donald Berk of counsel), for respondent.2011-2816 N CR. THE PEOPLE v. MORALES, CRISTIAN — Appeal from six judgments of the District Court of Nassau County, First District (Valerie Alexander, J.), rendered October 13, 2011. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated (per se), driving while intoxicated (common law), speeding, failing to signal before turning, and operating a motor vehicle with a broken windshield, and, upon a plea of guilty, of unlicensed operation of a motor vehicle, respectively. By decision and order on motion dated August 10, 2015, this court granted a motion by the People to dismiss the appeal on the ground, among others, that defendant had been deported and was no longer available to obey the mandate of the court (People v. Morales, 2015 NY Slip Op 82166[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). On December 15, 2016, the Court of Appeals reversed the order on motion of this court and remitted the matter to this court for further proceedings (People v. Morales, 28 NY3d 1087 [2016]).Now, following remittitur from the Court of Appeals, it isORDERED that the judgments convicting defendant of driving while intoxicated (per se), driving while intoxicated (common law), and failing to signal before turning are affirmed; and it is further,ORDERED that the judgments convicting defendant of speeding and operating a motor vehicle with a broken windshield are reversed, on the law, the simplified traffic informations charging those offenses are dismissed, and the fines therefor, if paid, are remitted; and it is further,ORDERED that so much of the appeal as is from the judgment convicting defendant of unlicensed operation of a motor vehicle is dismissed as abandoned.The People charged defendant, in separate simplified traffic informations, with driving while intoxicated (per se) (Vehicle and Traffic Law §1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), speeding (Vehicle and Traffic Law §1180 [d]), failing to signal before turning (Vehicle and Traffic Law §1163 [a]), operating a motor vehicle with a broken windshield (Vehicle and Traffic Law §375 [22]), and unlicensed operation of a motor vehicle (Vehicle and Traffic Law §509 [1]), respectively.After a Sandoval hearing (see People v. Sandoval, 34 NY2d 371 [1974]), the District Court held that defendant could be asked at trial about his undocumented immigration status and a prior conviction of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law §511 [1]). During jury selection, when the People exercised a peremptory challenge to excuse a prospective female juror (number 7), the court denied defense counsel’s gender-based Batson challenge (see Batson v. Kentucky, 476 US 79 [1986]).Thereafter, defendant moved to preclude evidence of his refusal at the precinct to submit to a chemical breath test, contending solely that the instructions the officer had given him concerning a refusal were not in Spanish. Following a pretrial refusal hearing conducted shortly before the trial pursuant to Vehicle and Traffic Law §1194 (2) (f), the court ruled that the People would be permitted to introduce evidence at trial that defendant had refused to submit to a chemical test.At a jury trial, Police Officer McGauley testified that he had been on patrol when he had observed a motor vehicle traveling at a rate of 52 miles per hour, and that the speed limit in the Village of Hempstead is 30 miles per hour. He testified further that he had observed defendant make a left turn into a parking lot without signaling. After stopping defendant’s vehicle, he noticed a crack in the windshield and observed defendant fumbling for the documents the officer had requested at the time of the stop. He further observed that defendant’s eyes were red, glassy and bloodshot, there was a strong odor of alcohol emanating from defendant’s breath and his speech was slurred. Upon administering field sobriety tests, he determined that defendant failed the horizontal gaze nystagmus test and the one-legged stand test. Although defendant performed the nine-step walk and turn test “fairly well,” he had raised his arms to keep his balance. The officer concluded that defendant was intoxicated.Police Officer Collins testified that he had properly warned defendant of the penalty for the refusal to take the breath test, that defendant appeared to understand the warnings given to him in English, and that defendant had acknowledged his assent in English, both orally and in writing. Although Officer Collins had given defendant instructions on how to properly blow into the mouthpiece, defendant failed to properly place his lips around the mouthpiece and, instead, blew out from the side of his mouth. Officer Collins testified that defendant’s blood alcohol (BAC) test results were “insufficient sample” readings of.12 and.13, respectively.Police Officer Nicholson was qualified as an expert witness on the Intoxilyzer 5000EN and testified that an “insufficient sample” reading on the breathalyzer device denotes that a breath sample had been provided but that the individual had not blown long enough into the instrument and, thus, was not doing as instructed. As a result, the reading will be the highest BAC that can be obtained, but will be less than a reading from a properly performed breath test. He testified further that the maintenance and calibration logs admitted into evidence established that the Intoxilyzer 5000EN device used to test defendant’s breath was in proper working order. Additionally, he testified that if there was the presence of mouth alcohol detected during the test, the Intoxilyzer 5000EN would invalidate the test.At the conclusion of the trial, defendant pleaded guilty to the charge of unlicensed operation of a motor vehicle. Following the trial, defendant was found guilty of driving while intoxicated (per se), driving while intoxicated (common law), speeding, failing to signal before turning, and operating a motor vehicle with a broken windshield. Defendant has been deported and is no longer within the court’s jurisdiction.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant’s guilt, beyond a reasonable doubt, of driving while intoxicated (per se), driving while intoxicated (common-law), and failing to signal before turning. The People presented evidence establishing that defendant had operated his motor vehicle and that, given the insufficient breath sample, his blood alcohol content was at least.12 of one percentum by weight (see People v. DeMarasse, 85 NY2d 842 [1995]; People v. Lont, 34 Misc 3d 142[A], 2012 NY Slip Op 50088[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). This evidence, together with evidence that defendant’s speech had been slurred, he had red, glassy bloodshot eyes, there was a strong odor of alcohol on his breath, he had failed to properly perform several field sobriety tests, and that he had been observed making a left turn into a parking lot without signaling, was sufficient to sustain the convictions of driving while intoxicated (per se) (Vehicle and Traffic Law §1192 [2]), driving while intoxicated (common-law) (Vehicle and Traffic Law §1192 [3]) and failing to signal before turning (Vehicle and Traffic Law §375 [22]).In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the opportunity of the jury to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Romero, 7 NY3d 633, 644-645 [2006]; People v. Mateo, 2 NY3d 383, 410 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]; People v. Adilovic, 34 Misc 3d 159[A], 2012 NY Slip Op 50437[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Upon a review of the record, we conclude that the verdicts finding defendant guilty of driving while intoxicated (per se), driving while intoxicated (common-law) and failing to signal before turning were not against the weight of the evidence (see People v. Danielson, 9 NY3d at 348-349).We are further of the opinion that the evidence, when viewed in the light most favorable to the prosecution (see People v. Contes, 60 NY2d at 621), was legally insufficient to establish defendant’s guilt of speeding (Vehicle and Traffic Law §1180 [d]) and operating a motor vehicle with a broken windshield (Vehicle and Traffic Law §375 [22]). The arresting officer failed to provide testimony regarding the locations of any posted speed limit signs (see People v. Lathrop, 3 NY2d 551, 553 [1958]) and merely testified that, in the “whole Village of Hempstead, the speed limit is 30″ (see People v. Tortora, 21 Misc 3d 146[A], 2008 NY Slip Op 52564[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Additionally, the People failed to provide a description of the cracked windshield so as to establish that it had “distort[ed] visibility” while defendant had been operating the vehicle (Vehicle and Traffic Law §375 [22]). Consequently, the judgments convicting defendant of speeding and operating a motor vehicle with a broken windshield must be reversed and the simplified traffic informations charging those offenses dismissed.We cannot agree with defendant’s contention that the District Court’s Sandoval ruling was improper. The District Court struck an appropriate balance on the issue of credibility between, on the one hand, the probative value of defendant’s prior conviction and his status as an “illegal alien” (see People v. Medina, 281 AD2d 563 [2001]; People v. Kaplan, 199 AD2d 82 [1993]) and, on the other hand, the potential prejudice to defendant (see People v. Hayes, 97 NY2d 203, 207-208 [2002]; People v. Barton, 110 AD3d 1089, 1090 [2013]). Contrary to defendant’s contention, the ” ‘mere fact that the defendant has committed a crime similar to the one for which he is currently being tried does not preclude inquiry into the prior crime’ ” (People v. DaCosta, 31 Misc 3d 142[A], 2011 NY Slip Op 50832[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011], quoting People v. Avila, 69 AD3d 642, 642 [2010]).We further find that the District Court did not improvidently exercise its discretion in limiting the defense’s cross-examination of the People’s witnesses (see Delaware v. Van Arsdall, 475 US 673, 679 [1986]; People v. Shields, 100 AD3d 549, 550 [2012]; People v. Rivera, 98 AD3d 529 [2012]; People v. Turner, 53 Misc 3d 130[A], 2016 NY Slip Op 51368[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; see also People v. Marino, 99 AD3d 726 [2012]). Additionally, we find that the court properly exercised its discretion in refusing to qualify defendant’s witness as an expert since defendant had not shown what evidence its expert witness would have offered that was material to this case involving a breath test result from an Intoxilyzer 5000EN device, aside from factors that may have affected the BAC reading that were speculative and theoretical at best (see People v. Lent, 29 Misc 3d 14, 16-17 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). Moreover, the District Court’s admission into evidence of the two breath test cards and the record of the simulator solution used in the Intoxilyzer 5000EN to test defendant’s breath was not improper (see People v. DeMarasse, 85 NY2d at 845; People v. Morren, 52 Misc 3d 132[A], 2016 NY Slip Op 51005[U], *2 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2016]), and did not violate the Confrontation Clause (see Crawford v. Washington, 541 US 36 [2004]; Melendez-Diaz v. Massachusetts, 557 US 305 [2009]; People v. Pealer, 20 NY3d 447 [2013]).In considering the merits of defendant’s Batson challenge, we note that he has pointed to nothing beyond the fact that prospective juror number 7 was female, which fact, standing alone, did not give rise to an inference that striking her from the jury panel was based on a discriminatory motive (see People v. Henderson, 305 AD2d 940, 941 [2003]). Indeed, even “[a] disproportionate number of strikes, without more, is rarely dispositive of the issue of impermissible discriminatory motive” (People v. Stanley, 292 AD2d 472, 473 [2002] [internal quotation marks omitted]; see generally People v. Connelly, 54 AD3d 348, 349 [2008] [defendant "offered no showing of circumstances sufficient to raise an inference of a pattern of discrimination"]). Consequently, we find that the District Court properly determined that defendant had failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination under the first step articulated in Batson (see People v. Sydoriak, 147 AD3d 791 [2017]).Vehicle and Traffic Law §1194 (2) (f) provides that “[e]vidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.”Defendant claims that he did not understand the refusal warnings given to him by the officer as to his obligation to submit to the test, and, thus, the District Court should have suppressed evidence of his refusal to submit to the chemical breath test. Assuming, without deciding, that submitting to two breath tests which, in each case, resulted in a readout of “insufficient sample,” and yet found a BAC of.12 and.13 (which levels would exceed the level set forth in Vehicle and Traffic §1192 [2]), constitutes a “failure” of such tests, thereby warranting a finding of two refusals to submit to a chemical test pursuant to Vehicle and Traffic Law §1194 (2) (f) (formerly Vehicle Traffic Law §1194 [4]) (see generally People v. Adler, 145 AD2d 943, 944 [1988]; Matter of Van Sickle v. Melton, 64 AD2d 846 [1978] [when a breathalyzer test fails for reasons attributable to the defendant, a refusal may be found]; see also People v. Bratcher, 165 AD2d 906, 907 [1990]), we find that the District Court properly declined to suppress evidence of such refusals. Defendant was given “clear and unequivocal” (Vehicle and Traffic Law §1194 [2] [f]) warnings of the effect of his refusal, and he persisted in failing to comply with instructions as to how to properly execute the test (see Matter of Van Sickle v. Melton, 64 AD2d at 846). The officer testified that defendant appeared to understand the warnings given to him in English, and that defendant had acknowledged his assent in English, both orally and in writing. Defendant’s assertions to the contrary merely created factual issues, which the jury resolved against him (see People v. Reynolds, 133 AD2d 499 [1987]).As defendant raises no issue with respect to the judgment convicting him, upon his plea of guilty, of unlicensed operation of a vehicle (Vehicle and Traffic Law §509 [1]), so much of the appeal as is from that judgment is dismissed as abandoned (see People v. Bankupally, 51 Misc 3d 144[A], 2016 NY Slip Op 50710[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).Accordingly, the judgments convicting defendant of driving while intoxicated (per se), driving while intoxicated (common law), failing to signal before turning are affirmed. The judgments convicting defendant of speeding and operating a motor vehicle with a broken windshield are reversed and the two simplified traffic informations charging those offenses are dismissed. So much of the appeal as is from the judgment convicting defendant of unlicensed operation of a motor vehicle is dismissed as abandoned.MARANO, P.J., TOLBERT and BRANDS, JJ., concur.November 16, 2017By: Marano, P.J., Iannacci, Garguilo, JJ.Nassau County District Attorney (Yael V. Levy, Ames C. Grawert of counsel), for appellant.Nassau County Legal Aid Society (Jeremy L. Goldberg, David Bernstein of counsel), for respondent.2015-1178 N CR. THE PEOPLE v. KNIGHT, JACQUELINE — Appeal from an order of the District Court of Nassau County, First District (David W. McAndrews, J.), dated February 6, 2015. The order granted defendant’s oral motion, pursuant to CPL 170.30 (1) (g), to set aside a jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge.ORDERED that the order is reversed, on the law, defendant’s oral motion, pursuant to CPL 170.30 (1) (g), to set aside the jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge is denied, and the matter is remitted to the District Court for sentencing on that conviction.On May 23, 2012, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (per se) (Vehicle and Traffic Law §1192 [2]) and several other Vehicle and Traffic Law violations. At a jury trial, the People’s witnesses testified as to defendant’s postarrest test of her blood alcohol content, which produced a reading of.13 of one per centum by weight of alcohol, to the indicia of actual intoxication that defendant exhibited, and to her admissions of alcoholic beverage consumption. Prior to its charge to the jury, the District Court granted the People’s request, pursuant to Vehicle and Traffic Law §1192 (9), to charge the jury with, in addition to driving while intoxicated (per se), driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), over defendant’s objection that the charge represented unfair surprise. The jury found defendant guilty of driving while intoxicated (per se) and driving while intoxicated (common law), and acquitted her of the remaining charges.After defendant was sentenced on the conviction of driving while intoxicated (per se), defendant orally moved, pursuant to CPL 170.30 (1) (g), to set aside the verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge. The People’s opposition to the motion addressed only the sufficiency of the trial evidence to support the conviction. By order dated February 6, 2015, the District Court granted the motion on the sole ground that a judgment convicting defendant of driving while intoxicated (common law) “would serve no useful purpose.” In a motion denominated as one for leave to reargue their opposition to defendant’s motion, the People contended that the CPL 170.30 motion had been untimely; that defendant’s motion had been improper because it had been made orally and without proper notice; that, in contravention of CPL 210.45, the People had been deprived of the opportunity to respond to defendant’s motion in writing; that the court, invoking only one of the factors enumerated in CPL 170.40 (1), had failed properly to analyze the matter in terms of any of the remaining factors involved in an interest of justice dismissal; and that the facts do not support the granting of the motion on the merits. The reargument motion remains undecided. The People appeal from the February 6, 2015 dismissal order, arguing that the motion was untimely, that they were denied their right to a motion made “in writing and upon reasonable notice” as required by CPL 210.45 (1) (see People v. Jennings, 69 NY2d 103, 113 [1986]; People v. Leclair, 12 Misc 3d 133[A], 2006 NY Slip Op 51180[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2006]), and that the motion was without merit and should have been denied.The rule requiring a writing upon reasonable notice “exists to ensure that the People are adequately protected from unfair surprise and have sufficient opportunity to respond to the defendant’s…claims…. The requirement of written motion papers serves the additional purpose of framing and narrowing the issues, enabling the prosecution to prepare an intelligent response” (People v. Mezon, 80 NY2d 155, 160 [1992]; see also People v. Littles, 188 AD2d 255, 256 [1992]; People v. Doxey, 46 Misc 3d 144[A], 2015 NY Slip Op 50193[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; 34 Carmody-Wait 2d 189:176). While the court erred in allowing an oral motion (see People v. Stanback, 149 AD3d 876, 877 [2017]; People v. Dunlap, 216 AD2d 215, 216-217 [1995]; People v. Jack, 117 AD2d 753, 753-754 [1986]; People v. Morisseau, 19 Misc 3d 59, 60 [App Term, 2d Dept, 2d & 11th Jud Dists [2008]), the People may waive their “right to demand written motion papers and reasonable advance notice in accordance with CPL 210.45 (1)” (People v. Mezon, 80 NY2d at 159) “by neglecting to object at the proper time” (id. at 160; see People v. Jennings, 69 NY2d at 113; People v. Parker, 223 AD2d 179, 182-183 [1996]). The objections are preserved when the People “insist upon conformity with the procedural requirements of CPL 210.45 (1)” (People v. Jennings, 69 NY2d at 113; see e.g. People v. Brye, 233 AD2d 775, 776 [1996]; People v. Cook, 193 AD2d 366, 369-370 [1993]; People v. Parikh, 31 Misc 3d 152[A], 2011 NY Slip Op 51138[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).At sentencing, the prosecutor failed to object that the writing and notice requirements had been violated (e.g. People v. Richman, 44 Misc 3d 34, 35-36 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; cf. People v. Hunter, 36 Misc 3d 138[A], 2012 NY Slip Op 51440[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v. McKiver, 24 Misc 3d 78, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), nor did the prosecution “request the formality of any further hearing” (People v. Singleton, 42 NY2d 466, 471 [1977]). Nevertheless, in light of People v. Jennings (69 NY2d at 113 [the procedural mandates of a motion to dismiss are waived where the People fail "to complain of the flaws…by either raising the problem before (the trial court)…or moving for reargument within a reasonable time thereafter"] [emphasis added]), we conclude that the People’s motion for reargument of the dismissal order, in which they raised the failure of defendant to comply with the requirements of CPL 210.45 (1), preserved the procedural objections (see People v. Parker, 223 AD2d at 182-183; People v. Cook, 193 AD2d at 369-370; People v. Richman, 44 Misc 3d at 36; People v. Bashkatov, 18 Misc 3d 127[A], 2007 NY Slip Op 52364[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Thus, the motion to dismiss the conviction of driving while intoxicated (common law) in the interest of justice should not have been entertained, and the order thereon should have been withdrawn upon the People’s timely objection thereto on procedural grounds. Consequently, we reverse the order, reinstate the conviction of driving while intoxicated (common law), and remit the matter to the District Court for sentencing on that conviction with leave to defendant, if she be so advised, to move, prior to sentencing, to set aside the verdict (see CPL 330.30) on grounds including, but not necessarily limited to, whether, under the circumstances presented, the request to charge the jury with Vehicle and Traffic Law §1192 (3) occurred under circumstances of surprise and undue prejudice to defendant’s opportunity to defend, and, thereby, violated her right to due process.We reach no other issue.Accordingly, the order is reversed, defendant’s oral motion, pursuant to CPL 170.30 (1) (g), to set aside the jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge is denied, and the matter is remitted to the District Court for sentencing on that conviction.MARANO, P.J., and GARGUILO, J., concur.IANNACCI, J., taking no part.November 16, 2017By: Marano, P.J., Tolbert, Brands, JJ.Dutchess County Public Defender (William Gee, Esq.), for appellant.Dutchess County District Attorney (Kirsten A. Rappleyea, Esq.), for respondent.2015-1418 D CR. THE PEOPLE v. SLOANE, DEREK — Appeal by defendant from two judgments of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), rendered March 19, 2015. Each judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the appeal is held in abeyance, the application by assigned counsel for leave to withdraw as counsel is granted, and new counsel is assigned pursuant to article 18-B of the County Law to prosecute the appeal;Azra Rayches Feldman, Esq.626 Reckson PlazaWest Tower, 6th FloorUniondale, NY 11556New counsel is directed to serve and file a brief within 90 days after the date of this decision and order. The People may serve and file a respondent’s brief within 21 days after the service upon them of the appellant’s brief. Appellant’s new counsel, if so advised, may serve and file a reply brief within seven days after service of the respondent’s brief. Relieved counsel is directed to turn over all papers in his possession to the newly assigned counsel.Assigned counsel submitted a brief in accordance with Anders v. California (386 US 738 [1967]), setting forth his conclusion that there exist no nonfrivolous issues that could be raised on appeal. An independent review of the record, however, reveals that a nonfrivolous issue exists as to whether one of the felony complaints, charging defendant with criminal possession of stolen property in the fourth degree (Penal Law §165.45 [2]) for possessing stolen credit cards, was properly converted to a misdemeanor information so as to effectuate the reduction of that felony charge (see CPL 180.50 [3] [a] [iii]) to criminal possession of stolen property in the fifth degree (Penal Law §165.40). We therefore grant assigned counsel’s motion to withdraw as counsel, and, in light of the risk inherent in the issue regarding the lack of notations to the felony complaint (see People v. Spooner, 22 Misc 3d 136[A], 2008 NY Slip Op 52664[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), we assign new counsel to ascertain whether defendant desires to raise the issue set forth above and to prosecute the appeal on defendant’s behalf with respect to this issue or any other issue that can be identified.MARANO, P.J., TOLBERT and BRANDS, JJ., concur.November 16, 2017By: Marano, P.J., Tolbert, Garguilo, JJ.Mitchell Dranow, Esq., for appellant.Huntington Town Attorney’s Office (Jacob C. Turner, Esq.), for respondent.2015-1435 S CR. THE PEOPLE v. 1262 NY, LLC — Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.; op 47 Misc 3d 1203[A], 2015 NY Slip Op 50376[U] [2015]), rendered May 4, 2015. The judgment convicted defendant, after a nonjury trial, of failing to have certificates of occupancy and/or certificates of permitted use.ORDERED that the judgment of conviction is affirmed.Insofar as is relevant to this appeal, following a nonjury trial, defendant, as owner of certain property, was convicted of failing to have certificates of occupancy and/or certificates of permitted use in violation of Huntington Town Code §198-120 (A) in that defendant “did maintain and/or allowed there to be maintained two apartments on the main rear level…for which a certificate of occupancy and/or certificate of permitted use has not been issued” (see Town of Huntington v. 1262 NY, LLC, 47 Misc 3d 1203[A], 2015 NY Slip Op 50376[U] [District Ct, Suffolk County 2015]). The two apartments at issue are contained in a building located on the corner of New York Avenue and 2nd Street.On appeal, defendant contends, among other things, that Huntington Town Code §198-120 (A) is preempted by the Uniform Fire Prevention and Building Code; that the People were collaterally estopped from charging it with failing to have certificates of occupancy and/or certificates of permitted use for the two apartments because, in 2003, as a result of an order in a prior case, a letter-in-lieu of certificate of occupancy (letter-in-lieu) had been issued for the property; and that the People did not show that defendant was required to have certificates of occupancy and/or certificates of permitted use due to the fact that a letter-in-lieu had been issued.In 2008, defendant purchased the property in question, which consists of a lot containing a building located on the corner of New York Avenue and 2nd Street in the Town of Huntington Station, and a second building facing 2nd Street, which building is located behind the first building. The record on appeal indicates that a prior owner of the property had pleaded guilty in 2003 to numerous charges involving the property, and was sentenced to fines and a conditional discharge which contained a condition that he “obtain [a] certificate of occupancy or letter [in] lieu [for the] two-family dwelling located in rear building” facing 2nd Street. A 2003 letter-in-lieu, which was subsequently issued, references two buildings on the property and states that certificates of occupancy and/or certificates of permitted use cannot be provided for the property because “the structure(s) was (were) erected prior to 1934.”Defendant’s contention that Huntington Town Code §198-120 (A) is preempted by the Uniform Fire Prevention and Building Code is raised for the first time on appeal and, therefore, is unpreserved for appellate review (see Matter of Traekwon I., 152 AD3d 431 [2017]; People v. Stedge, 135 AD3d 1170, 1172 [2016]; People v. Scott, 126 AD3d 645, 646 [2015]). In any event, this contention lacks merit, as Huntington Town Code §198-120 (A) is not preempted by the Uniform Fire Prevention and Building Code (see generally Executive Law §379 [3]).The Huntington Town Code does not address letters-in-lieu; however, the record indicates that the Town will issue such a letter if it determines that a building predates the Town’s zoning code. If a building lawfully existed before the time the Town Code was enacted,1 but did not conform to the newly enacted code, the building is considered a nonconforming use (see Huntington Town Code §198-2). Zoning regulations cannot prohibit an existing use to which the property in question is devoted at the time of the regulations’ enactment (see Matter of Syracuse Aggregate Corp. v. Weise, 51 NY2d 278 [1980]; Matter of Keller v. Haller, 226 AD2d 639, 640 [1996]).Huntington Town Code §198-107.1 provides as follows:“Nonconforming use designated as an affirmative defense.In any prosecution for a violation of the provisions of this chapter, it is an affirmative defense that the building, structure or use is a nonconforming use as defined in §198-2. A defendant who raises this affirmative defense must plead and prove it by a preponderance of the evidence.”Huntington Town Code §198-2 defines a “nonconforming use” as “Any building,…structure…existing at the time of enactment of this chapter or any amendment thereto which does not conform to the zoning regulations…by reason of the enactment of this chapter.” Thus, to prove a nonconforming use affirmative defense, the property owner must establish that the allegedly preexisting use was legal prior to the enactment of the prohibitive ordinance which purportedly rendered it nonconforming (see Matter of Keller v. Haller, 226 AD2d at 640), and that the property had not been altered after the enactment of the ordinance. We note that a “Letter in Lieu…issued by the Building Department…does not bind a municipality to a course of conduct if there is a violation of its own ordinances” (see Matter of Straub v. Modelewski, 2007 WL 3235496 [Sup Ct, Suffolk County, June 19, 2007, No. 0022759-2006]).In the case at bar, it is uncontroverted that, in 2003, a letter-in-lieu was issued for the buildings located on the property which defendant purchased in September 2008. Contrary to the People’s argument that the letter-in-lieu applies only to the person who requested it, the letter clearly runs with the building(s) it references (see e.g. Matter of Straub v. Modelewski, 2007 WL 3235496). It was defendant’s burden to show, by a preponderance of the evidence, that the two first-floor apartments existed at the time of the enactment of the Town Code and had not been altered at any time thereafter up until the time of the alleged violation in April 2012 (see Huntington Town Code §§198-107.1, 198-2; see e.g. Matter of Straub v. Modelewski, 2007 WL 3235496). Upon a review of the record, we find that defendant failed to meet its burden. Defendant’s remaining contentions lack merit. Consequently, the District Court properly convicted defendant of failing to have certificates of occupancy and/or certificates of permitted use in violation of Huntington Town Code §198-120 (A).Accordingly, the judgment of conviction is affirmed.MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.November 16, 2017
