Opinion
No. 2010-2151 S CR.
July 7, 2011
APPEAL from judgment s of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), rendered July 19, 2010. The judgments convicted defendant, after a nonjury trial, of altering a premises without a permit and of occupying or using a premises in violation of a certificate of occupancy.
Edward S. Raskin, Deer Park, for appellant. Robert F. Quinlan, Town Attorney, Farmingville ( Jennifer Lutzer of counsel), for respondent.
Before: IANNACCI, J.P., NICOLAI and MOLIA, JJ.
OPINION OF THE COURT
MEMORANDUM.
Ordered that the judgment convicting defendant of altering a premises without a permit is reversed, on the law, the accusatory instrument charging that offense is dismissed, and the fine and surcharge imposed thereon, if paid, are remitted; and it is further, ordered that the judgment convicting defendant of occupying or using a premises in violation of a certificate of occupancy is affirmed.
Following a nonjury trial, defendant was convicted of altering a premises without a permit (Brookhaven Town Code § 16-3) and of occupying or using a premises in violation of a certificate of occupancy (Brookhaven Town Code § 16-4). On appeal, defendant contends, in part, that both accusatory instruments were jurisdictionally defective.
Brookhaven Town Code § 16-3 (A) 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 factual portion of the accusatory instrument charging defendant with violating Brookhaven Town Code § 16-3 provides, in pertinent part:
"On August 19, 2009 at 5:30 p.m . . . defendant . . . did own the subject premises located at 11 Westbrook Road, Coram, Town of Brookhaven . . . as determined by a search of records maintained by the Town of Brookhaven's Assessor's Office. On August 19, 2009, deponent observed at subject premises, an attic with finished sheet rock walls and ceiling, and a bathroom with a shower, bathtub, sink and cabinets and a toilet. Deponent searched the records maintained by the Chief Building Inspector of the Town of Brookhaven and found no permit for the conversion of the attic to habitable space at subject premises."
These factual allegations, even if given a "reasonable, not overly technical reading" ( People v Konieczny, 2 NY3d 569, 576), do not "establish, if true" (CPL 100.40 [c]), any "buil[ding], instal[ling], enlarg[ing] or alter[ing]" by defendant (Brookhaven Town Code § 16-3 [A]; see People v Jones, 9 NY3d 259, 262; People v Alejandro, 70 NY2d 133, 134-135). The information alleges only, in effect, that the attic had been converted to a habitable space, and does not allege that the conversion took place while defendant owned the property ( 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.
The accusatory instrument charging a violation of Brook-haven Town Code § 16-4 alleges that defendant was occupying the attic as a post-conversion "habitable space" in contravention of the certificate of occupancy, in that
"deponent observed the attic at subject premises occupied and used by two (2) or more individuals, along with 2 beds, TY fan, speakers and bathroom products [and upon a search of the Town records] found no Certificate of Occupancy for the conversion of the attic to habitable space at the subject premises."
These allegations were sufficiently evidentiary to support the element of the offense as charged — that the attic was being used as "habitable space" ( see CPL 100.15; People v Dumas, 68 NY2d 729). We reject defendant's contention that the