Appeal from judgments of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), rendered March 15, 2010. The judgments convicted defendant, upon jury verdicts, of altering a premises without a permit and of occupying or using a premises in violation of a certificate of occupancy. The appeal from the judgments brings up for review an order of the same court dated June 10, 2009 which, among other things, denied defendant's motion to dismiss the accusatory instruments for legal insufficiency.

ORDERED that the judgments of conviction are reversed, on the law, so much of the order dated June 10, 2009 as denied defendant's motion to dismiss the accusatory instruments for legal insufficiency is vacated, defendant's motion to dismiss the accusatory instruments is granted, and the fine and surcharge, if paid, are remitted.

Defendant, charged with violating Brookhaven Town Code § 16-3 ("Permit required; inspection; information to be submitted") and § 16-4 ("Certificates of occupancy"), moved to dismiss the accusatory instruments as jurisdictionally defective. The District Court denied the motion. Following a jury trial, defendant was convicted as charged. On appeal, defendant contends, among other things, that his motion to dismiss the accusatory instruments as jurisdictionally defective should have been granted. We agree.

Brookhaven Town Code § 16-3 prohibits "buil[ding], install[ing], enlarg[ing] or alter[ing]" any wall, structure, plumbing, building or part thereof without obtaining a proper permit therefor. The information alleges that, whereas the certificate of occupancy indicates that the second story of the house in question is unfinished, a town inspector observed finished sheet rock walls, curtains in the front dormer windows and an air conditioning window unit in the second story of the house, and that no records were found showing any permits issued for the [*2]alteration of the second story to living area. These factual allegations, even if given a "reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 [2004]), do not "establish, if true" (CPL 100.40 [1] [c]), any "buil[ding], install[ing], enlarg[ing] or alter[ing]" by defendant (Brookhaven Town Code § 16-3 [A]; see People v M. Santulli, LLC, 28 Misc 3d 136[A], 2010 NY Slip Op 51449[U] [App Term, 9th & 10th Jud Dists 2010]; People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010]; People v Caravousanos, 2 Misc 3d 7, 10 [App Term, 9th & 10th Jud Dists 2003]; People v Cullen, 195 Misc 2d 692, 695 [App Term, 9th & 10th Jud Dists 2003]). Consequently, we find that the accusatory instrument charging a violation of Brookhaven Town Code § 16-3 is jurisdictionally defective.

Brookhaven Town Code § 16-4 (A) states:
"No land shall be occupied or used and no building, structure or portion thereof shall be occupied, used or changed in its use until a certificate of occupancy has been issued by the Town of Brookhaven Department of Building and Fire Prevention stating that the building, structure or proposed use complies with the provisions of this code and any other applicable codes and regulations."
The accusatory instrument charging defendant with violating Brookhaven Town Code § 16-4 alleges the same observations on behalf of the town inspector as were set forth in the accusatory instrument alleging a violation of section 16-3. The accusatory instrument further states, that no records were found with the Town of Brookhaven Building Department "showing certificates of occupancy for the use of the second story as finished living space." The sparse allegations contained in the accusatory instrument are not sufficiently evidentiary to support the offense as charged therein — that the second floor was being used as finished living space (see People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U]). Consequently, this accusatory instrument is similarly jurisdictionally defective.

Accordingly, the judgments of conviction are reversed, so much of the order dated June 10, 2009 as denied defendant's motion to dismiss the accusatory instruments for legal insufficiency is vacated, and defendant's motion to dismiss the accusatory instruments is granted.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: August 01, 2011