Appeal by the People from an order of the District Court, Suffolk County (J. Toomey, Jr., J.), dated February 11, 2003, granting defendant's motion to dismiss the accusatory instruments.

Order unanimously affirmed.

Defendant was charged with violating New York State Uniform Fire Prevention and Building Code (9 NYCRR) § 1241.1 (c), pursuant to Executive Law § 382, by using the cellar as a habitable space, as well as violating the New York State Uniform Fire Prevention and Building Code (9 NYCRR) § 1193.2 , pursuant to Executive Law § 382, by not having a smoke detector in a one or two family dwelling used as a residence.
Defendant moved to dismiss the accusatory instruments, which motion the People opposed. The motion was granted by order dated February 11, 2003.

Unless the defendant took part in the construction of the building, an information charging the defendant with a violation pursuant to Executive Law § 382 (2), must contain the factual allegation that the defendant failed to comply with a written order to remedy the violation (see e.g. People v Caravousanos (NYLJ, Nov. 3, 2003 [App Term, 9th & 10th Jud Dists]). Herein, neither information states that defendant took part in the construction of the building, nor contains the factual allegation that defendant failed to comply with a written order to remedy the violation. In addition, the information charging defendant with violating 9 NYCRR 1193.2 does not allege that the dwelling was used as a residence. Moreover, inasmuch as the record on appeal [*2]does not indicate that the relevant supporting documentation was filed with the court below during defendant's arraignment on July 17, 2002, it has not been considered in determining the facial sufficiency of the accusatory instruments.
Consequently, the court below properly dismissed the accusatory instruments since they fail to contain nonhearsay allegations of fact that establish, if true, every element of the offenses charged (see CPL 100.40 [1]),
Decision Date: April 01, 2004