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People v. Federico

91 Misc. 2d 131 Court Supreme Court, Appellate Term, Second Department, Decision date 1977-04-21 English

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p. 131
The People of the State of New York, Respondent, v Robert Federico, Appellant.
Supreme Court, Appellate Term, Second Department,
April 21, 1977
Richard T. Monahan and Joseph Lite for appellant. Henry F. O’Brien, District Attorney (Ronald E. Lipetz of counsel), for respondent.

Memorandum. Judgment of conviction affirmed.

Defendant’s guilt of violating section 1 of article V of the Code of Ordinances of the Village of Ocean Beach in that he allowed an excursion boat to land in the Village of Ocean Beach was established beyond a reasonable doubt. Although defendant has questioned the constitutionality of the ordinance, i.e., that it is prohibitory rather than regulatory (see 9 NY Jur, Constitutional Law, § 196) and contends that it has been enforced in a discriminatory manner, defendant has failed to raise these issues in the proper manner (CPL 170.30, subd 1, par [a]; subd 2, 170.35 (subd 1, par [c]); 255.20, subd 3; People v Sullivan, 87 Misc 2d 254 ; People v Goodman, 31 NY2d 262 , 268, 269). The fact that this court is unable to entertain said issues on this appeal does not leave defendant without a remedy. He may, if he be so advised, move pursuant to CPL 440.10 (subd 1, par [h]) to vacate the judgment on the

p. 132
ground that it was obtained in violation of his rights under the Constitution of this State or the United States.

Concur: Farley, P. J., Glickman and Gagliardi, JJ.

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