People v Cusack (Rose) |
2012 NY Slip Op 50299(U) [34 Misc 3d 151(A)] |
Decided on February 15, 2012 |
Appellate Term, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P.
Flanagan, J.), rendered October 5, 2009. The judgment convicted defendant, after a nonjury trial,
of changing the occupancy or use of her building to one inconsistent with the last issued
certificate of occupancy.
ORDERED that the judgment is reversed, on the law, the information is dismissed, and the fine, if paid, is remitted.
After a nonjury trial, the District Court found defendant guilty of changing the occupancy or use of her building to one inconsistent with the last issued certificate of occupancy (Code of the Town of Islip § 68-25 [B] [1]). The information charging defendant with changing the occupancy or use of her building to one inconsistent with the last issued certificate of occupancy is jurisdictionally defective and, consequently, the accusatory instrument must be dismissed.
Section 68-25 (B) (1) prohibits changing the occupancy or use of a building:
"erected or altered that is not consistent with the last issued certificate of occupancy for such building unless a permit is secured. In case of an existing building, no change of occupancy that would bring it under some special provision of this ordinance shall be made unless the Building Director upon inspection, finds that such building conforms substantially to the provisions of this ordinance with respect to the proposed new occupancy and use, and issues a certificate of occupancy therefor."[*2]
Accordingly, the judgment of conviction is reversed and the information is dismissed.
In view of the foregoing, we pass on no other issue.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: February 15, 2012