People v. Bonnerwith — 79 Misc. 2d 242

Majority

p. 242

The People of the State of New York, Respondent v. Oliver Bonnerwith, Appellant.

Supreme Court, Appellate Term, Second Department,

March 22, 1974.

Carl P. Ulrich for respondent. Bernard Kessler for appellant.

Memorandum. Judgment of conviction unanimously reversed on the law and facts and complaint dismissed.

Defendant was not entitled to a jury trial, since the maximum sentence he could receive was six months’ incarceration (Baldwin v. New York, 399 U. S. 66 ) and there was no basis in fact for defendant’s claim that the Justice below was biased against him.

However, defendant may not be convicted of a zoning violation where he has shown a valid nonconforming use (People v. Miller, 304 N. Y. 105 ; 2 Rathkoff, Law of Zoning and Planning [3d ed., 1972], p. 58-1), even though there has been a legitimate increase in volume (People v. Perkins, 282 N. Y. 329 ; Matter of Vella v. Zoning Bd. of Appeals of Rochester, 206 Misc. 941 , 945).

Concur — Hogan, P. J., Pittoni and Parley, JJ.

Cases cited

Baldwin v. New York 399 U. S. 66 SCOTUS 1970-06-22 p. 242
People v. Miller 304 N. Y. 105 N.Y. 1952-04-23 p. 242
People v. Perkins 282 N. Y. 329 N.Y. 1940-03-05 p. 242
Vella v. City Zoning Board of Appeals 206 Misc. 941 N.Y. Sup. Ct. 1954-12-08 at 945 p. 242