requisite balancing test in New York

2017The record reveals that the ZBA’s conclusion that the detriment to the surrounding neighborhood posed by granting the requested variances outweighed the benefit to the petitioners had a rational basis and was not arbitrary or capricious (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608 [2004]; Matter of Sasso v Osgood, 86 NY2d 374 [1995]; Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62 [2009]; Matter of Allstate Props., LLC v Board of Zoning Appeals of Vil. of Hempstead, 49 AD3d 636 [2008]).

2016In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by the petitioner could be achieved by other methods (see Town Law § 267-b [3] *1132 [b]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]; Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825 [2015]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902 [2015]).

2026While County Court's ruling did not explicitly describe the requisite balancing test on the record, it includes defense counsel's objections and reflects that the court was aware of its obligation to balance the prejudicial effect and probative value of the convictions ( see People v Pigford , 148 AD3d 1299 , 1302 [3d Dept 2017], lv denied 29 NY3d 1085 [2017]; People v Brown , 128 AD3d 1183, 1186 [3d Dept 2015], lv denied 27 NY3d 993 [2016]).

2017While County Court’s ruling on the issue did not describe the requisite balancing test in the record, “[s]uch an analysis may be implied where, as here, a court limits the admission of the evidence based upon a record that includes defense counsel’s [objections] to a Molineux application” (Pe ople v Scaringe, 137 AD3d 1409, 1417 [2016], lv denied 28 NY3d 936 [2016]) and the record “reflects that County Court was aware of its obligation to balance the probative value of such evidence against its prejudicial effect” (People v Brown, 128 AD3d 1183, 1186 [2015], lv denied 27 NY3d 993 [2016]).

2020Furthermore, although a balancing of the evidence's probative value against its potential for prejudice is not expressly reflected in County Court's pretrial ruling on the matter, as it should have been, we find that County Court implicitly engaged in the requisite balancing test here, given its preclusion of other proffered Molineux evidence for being more prejudicial than probative ( see People v Pigford , 148 AD3d 1299, 1302 [2017], lv denied 29 NY3d 1085 [2017]; People v Scaringe , 137 AD3d 1409, 1417 [2016], lv denied 28 NY3d 936 [2016]). [FN2] Defendant failed to preserve his remaining a

2017While County Court’s ruling on the issue did not describe the requisite balancing test in the record, “[s]uch an analysis may be implied where, as here, a court limits the admission of the evidence based upon a record that includes defense counsel’s [objections] to a Molineux application” (Pe ople v Scaringe, 137 AD3d 1409, 1417 [2016], lv denied 28 NY3d 936 [2016]) and the record “reflects that County Court was aware of its obligation to balance the probative value of such evidence against its prejudicial effect” (People v Brown, 128 AD3d 1183, 1186 [2015], lv denied 27 NY3d 993 [2016]).

2017Here, the Board of Zoning Appeals of the Town of Brookha-ven (hereinafter the BZA) performed the requisite balancing test, and its conclusion that the detriment to the surrounding neighborhood posed by granting the requested variances outweighed the benefit to the petitioner had a rational basis and was supported by the record (see Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825, 825 [2015]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904 [2015]).

2016In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by the petitioner could be achieved by other methods (see Town Law § 267-b [3] *1132 [b]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]; Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825 [2015]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902 [2015]).

2007While we agree with Supreme Court that respondent had jurisdiction to consider the use variance, the court should have remitted the matter to respondent for consideration of the merits, i.e., to engage in the requisite balancing test which requires, among other factors (see Town Law § 267-b [2] [b]), that the benefit to the applicant be weighed against the detriment to the community in granting the minimum variance necessary including, for example, the appropriate time period for the continued nonconforming use of the property if a variance is otherwise justified (see Town Law § 267-b [2] [c];

2001The Board failed to engage in the requisite balancing test, “considering the factors outlined in [Town Law § 267-b (3) (b)] and weighing the benefit to the applicant[s] against the detriment to the health, safety and welfare of the neighborhood or community” (Matter of Khan v Zoning Bd. of Appeals, 87 NY2d 344, 351-352 , rearg denied 87 NY2d 1056 ; see, Matter of Peccoraro v Humenik, 258 AD2d 465 ; Matter of D’Angelo v Zoning Bd., 229 AD2d 945 , lv denied 89 NY2d 803 ; see generally, Matter of Sasso v Osgood, 86 NY2d 374, 384 ).

2016Contrary to defendant’s contention, the court properly concluded that the probative value of the witness’s testimony outweighed its prejudicial effect (see Kidd, 112 AD3d at 995).

2016Contrary to defendant’s contention, the court properly concluded that the probative value of the witness’s testimony outweighed its prejudicial effect (see Kidd, 112 AD3d at 995).

2013Here, defense counsel opposed the introduction of the Molineux evidence based on its prejudicial effect, and the court’s Molineux determination included a limiting instruction to the jury (see People v Milot, 305 AD2d 729, 731 [2003], lv denied 100 NY2d 585 [2003]).

2013Here, defense counsel opposed the introduction of the Molineux evidence based on its prejudicial effect, and the court’s Molineux determination included a limiting instruction to the jury (see People v Milot, 305 AD2d 729, 731 [2003], lv denied 100 NY2d 585 [2003]).

2013Although the court arguably could have better “recited its discretionary balancing of the probity of such evidence against its potential for prejudice” (People v Meseck, 52 AD3d 948, 950 [2008], lv denied 11 NY3d 739 [2008]), we conclude that, viewing the record in its entirety, the court conducted the requisite balancing test (see id.).

2013Although the court arguably could have better “recited its discretionary balancing of the probity of such evidence against its potential for prejudice” (People v Meseck, 52 AD3d 948, 950 [2008], lv denied 11 NY3d 739 [2008]), we conclude that, viewing the record in its entirety, the court conducted the requisite balancing test (see id.).

2017The BZA rationally concluded that the requested variances were substantial in nature, that the petitioner had feasible alternatives that did not require such variances, and that the granting of the variances could set a negative precedent within the neighborhood (see Matter of Affordable Homes of Long Is., LLC v Monteverde, 128 AD3d 1060, 1062 [2015]; Matter of Kearney v Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 714 [2011]; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147 [2009]).

2015In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904 [2015]; Matter of Kearney *826 v Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 714 [2011]; Matter of Roberts v Wright, 70 AD3d 1041, 1043 [2010]).

2019Contrary to defendant's further contention, we conclude that, "[a]lthough the court arguably could have better recited its discretionary balancing of the probity of such evidence against its potential for prejudice . . . , viewing the record in its entirety, the court conducted the requisite balancing test" ( People v Lawrence , 141 AD3d 1079 , 1081 [4th Dept 2016], lv denied 28 NY3d 1029 [2016] [internal quotation marks omitted]; see People v Holmes , 104 AD3d 1288, 1290 [4th Dept 2013], lv denied 22 NY3d 1041 [2013]).

2016“Although the court arguably could have better ‘recited its discretionary balancing of the probity of such evidence against its potential for prejudice’ . . . , we conclude that, viewing the record in its entirety, the court conducted the requisite balancing test” (Holmes, 104 AD3d at 1290 ).

2026While County Court's ruling did not explicitly describe the requisite balancing test on the record, it includes defense counsel's objections and reflects that the court was aware of its obligation to balance the prejudicial effect and probative value of the convictions ( see People v Pigford , 148 AD3d 1299 , 1302 [3d Dept 2017], lv denied 29 NY3d 1085 [2017]; People v Brown , 128 AD3d 1183, 1186 [3d Dept 2015], lv denied 27 NY3d 993 [2016]).

2020Furthermore, although a balancing of the evidence's probative value against its potential for prejudice is not expressly reflected in County Court's pretrial ruling on the matter, as it should have been, we find that County Court implicitly engaged in the requisite balancing test here, given its preclusion of other proffered Molineux evidence for being more prejudicial than probative ( see People v Pigford , 148 AD3d 1299, 1302 [2017], lv denied 29 NY3d 1085 [2017]; People v Scaringe , 137 AD3d 1409, 1417 [2016], lv denied 28 NY3d 936 [2016]). [FN2] Defendant failed to preserve his remaining a

2019Contrary to defendant's further contention, we conclude that, "[a]lthough the court arguably could have better recited its discretionary balancing of the probity of such evidence against its potential for prejudice . . . , viewing the record in its entirety, the court conducted the requisite balancing test" ( People v Lawrence , 141 AD3d 1079 , 1081 [4th Dept 2016], lv denied 28 NY3d 1029 [2016] [internal quotation marks omitted]; see People v Holmes , 104 AD3d 1288, 1290 [4th Dept 2013], lv denied 22 NY3d 1041 [2013]).

2017Here, although we note that “the court . . . could have better recited its discretionary balancing of the probity of such evidence against its potential for prejudice . . . , we conclude that, viewing the record in its entirety, the court conducted the requisite balancing test” (People v Lawrence, 141 AD3d 1079, 1081 [2016], lv denied 28 NY3d 1029 [2016] [internal quotation marks omit *1532 ted]).

2017Here, the Board of Zoning Appeals of the Town of Brookha-ven (hereinafter the BZA) performed the requisite balancing test, and its conclusion that the detriment to the surrounding neighborhood posed by granting the requested variances outweighed the benefit to the petitioner had a rational basis and was supported by the record (see Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825, 825 [2015]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904 [2015]).

2016In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by the petitioner could be achieved by other methods (see Town Law § 267-b [3] *1132 [b]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]; Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825 [2015]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902 [2015]).

2020Furthermore, although a balancing of the evidence's probative value against its potential for prejudice is not expressly reflected in County Court's pretrial ruling on the matter, as it should have been, we find that County Court implicitly engaged in the requisite balancing test here, given its preclusion of other proffered Molineux evidence for being more prejudicial than probative ( see People v Pigford , 148 AD3d 1299, 1302 [2017], lv denied 29 NY3d 1085 [2017]; People v Scaringe , 137 AD3d 1409, 1417 [2016], lv denied 28 NY3d 936 [2016]). [FN2] Defendant failed to preserve his remaining a

2019Moreover, the court properly determined that the probative value of the evidence outweighed its potential for prejudice ( see Serrano , 164 AD3d at 1659; Pytlak , 99 AD3d at 1243).

2017The BZA rationally concluded that the requested variances were substantial in nature, that the petitioner had feasible alternatives that did not require such variances, and that the granting of the variances could set a negative precedent within the neighborhood (see Matter of Affordable Homes of Long Is., LLC v Monteverde, 128 AD3d 1060, 1062 [2015]; Matter of Kearney v Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 714 [2011]; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147 [2009]).

2017The BZA rationally concluded that the requested variances were substantial in nature, that the petitioner had feasible alternatives that did not require such variances, and that the granting of the variances could set a negative precedent within the neighborhood (see Matter of Affordable Homes of Long Is., LLC v Monteverde, 128 AD3d 1060, 1062 [2015]; Matter of Kearney v Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 714 [2011]; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144, 1147 [2009]).

2015In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]; Matter of Sacher v Village of Old Brookville, 124 AD3d 902, 904 [2015]; Matter of Kearney *826 v Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 714 [2011]; Matter of Roberts v Wright, 70 AD3d 1041, 1043 [2010]).

2011A court officer’s testimony describing a statement made by defendant during a bail hearing was properly allowed into evidence under the requisite balancing test (see People v Mateo, 2 NY3d 383, 424-425 [2004], cert denied 542 US 946 [2004]).

2007Maloy, Inc. v Zoning Bd. of Appeals of Town of Sand Lake, 168 AD2d 874, 876 [1990]).