Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), rendered April 10, 2007. The order, insofar as appealed from, granted a motion by defendant to dismiss two superseding informations charging it with violating Islip Town Code § 68-339 and, sua sponte, dismissed a superseding information charging defendant with violating Islip Town Code § 68-23 (A).

Order, insofar as appealed from, modified on the law by striking therefrom the provision granting so much of defendant's motion as sought to dismiss the superseding information charging defendant with violating Islip Town Code § 68-339, wherein it alleged the storage of commercial construction material from August 7, 2004 to September 11, 2006, and the provision sua sponte dismissing the superseding information charging defendant with violating Islip Town Code § 68-23 (A), by adding thereto a provision denying defendant's motion insofar as it sought to dismiss the aforesaid superseding information charging defendant with violating Islip Town Code § 68-339, and by reinstating said superseding information and the superseding information charging a violation of Islip Town Code § 68-23 (A); as so modified, affirmed.

Defendant was charged in two separate superseding informations with violating Islip Town Code § 68-339. A third superseding information charged defendant with violating Islip Town Code § 68-23 (A). In a fourth accusatory instrument entitled "Accusatory Instrument for [*2]Town Ordinances," defendant was again charged with violating Islip Town Code § 68-339. The sworn factual allegations contained in one of the superseding informations charging defendant with violating Islip Town Code § 68-339, which are based upon the complainant's personal knowledge and information and belief, were as follows:
"The defendant, Pond Associates Corp. at 2380 Pond Rd, Ronkonkoma, Town of Islip, County of Suffolk, State of New York, 11779 between August 7, 2006 and September 11, 2006, as owner of the subject property which is located in an Industrial One Zoning District, while operating what appears to be a concrete company, did allow and maintain the outdoor storage of commercial construction material, namely but not limited to bundles of re-bar [sic], wood concrete framing forms and wood pallets. The outdoor storage of these materials has not been expressly permitted by the Town of Islip and are therefore, prohibited by Town Code."

The sworn factual allegations contained in the other superseding information charging defendant with violating Islip Town Code § 68-339, which are also based upon the complainant's personal knowledge and information and belief, were as follows:
"The defendant, Pond Associates Corp. at 2380 Pond Rd, Ronkonkoma, Town of Islip, County of Suffolk, State of New York, 11779 between August 7, 2006 and September 11, 2006, as owner of the subject property which is located in an Industrial One Zoning District, while operating what appears to be a concrete company, did allow and maintain the outdoor storage of commercial construction vehicles, namely a cherry picker' bucket truck, and between two (2) and five (5) flat bed type trucks. These vehicles were located in the rear yard of the premises behind a fence. The outdoor storage of these vehicles has not been expressly permitted by the Town of Islip and are therefore, prohibited by Town Code."
The factual allegations contained in the superseding information charging defendant with violating Islip Town Code § 68-23 (A) were as follows:
"The defendant, Pond Associates Corp. at 2380 Pond Rd, Ronkonkoma, Town of Islip, County of Suffolk, State of New York, 11779 on or about August 7, 2006 at approximately 2:55 p.m., as owner of the subject property, did maintain a building [*3]measuring approximately 20' x 30' on the south side of the subject property. This building is separate and distinct from the structures which are found on the building division certificate of occupancy. There have been no permits issued for this building as indicated by the attached certificate of occupancy."

Defendant moved to dismiss the three accusatory instruments charging it with violating Islip Town Code § 68-339 on the ground that they were jurisdictionally defective. The court below granted defendant's motion to dismiss the three accusatory instruments charging it with violating Islip Town Code § 68-339 and, in the interest of justice, dismissed the superseding information charging defendant with violating Islip Town Code § 68-23 (A), on the ground that the accusatory instruments were jurisdictionally defective.

On appeal, the People contend that the two superseding informations charging defendant with violating Islip Town Code § 68-339 and the superseding information charging defendant with violating Islip Town Code § 68-23 (A) were legally sufficient. The People raise no issue concerning the portion of the order dismissing the "accusatory instrument for Town Ordinance" charging defendant with violating Islip Town Code § 68-339.

Islip Town Code § 68-339 provides as follows:
"All uses not expressly permitted are prohibited. Nothing herein contained shall be construed to permit the erection, alteration, addition, maintenance or use of any premises of either a business or industrial operation which shall provide outdoor storage, outside service, outside display, outside counter or window service, carhopping service or drive-in or drive-up counter or window service in an Industrial 1 District."

Outdoor storage is defined under Islip Town Code § 68-3 as follows:
"Any storage, as defined in this section, that is located other than in an enclosed building or structure, including structures that cannot meet the New York State Fire and Building Code."

Storage is defined under Islip Town Code § 68-3 as follows:
"The location of goods, merchandise, unregistered motor vehicles, registered or unregistered unattached trailers, shipping containers, equipment, materials, debris, and/or any other items either in an [*4]enclosed structure or outside of an enclosed structure."

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL 100.15 and the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offenses charged in the accusatory part of the information and the nonhearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offenses charged and defendant's commission thereof. The law does not require that the most precise words or phrases which most clearly express the thought be required in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v Zambounis, 251 NY 94 [1929]). The failure to comply with this requirement is a nonwaivable jurisdictional defect (People v Alejandro, 70 NY2d 133 [1987]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

The factual portion of the superseding information which contains an allegation that construction material, "namely but not limited to bundles of re-bar [sic], wood concrete framing forms and wood pallets," was stored outdoors at the subject premises is legally sufficient on its face since it contains nonhearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (see CPL 100.15, 100.40; People v Alejandro, 70 NY2d 133 [1987], supra). Accordingly, defendant's motion, insofar as it sought to dismiss the superseding information charging defendant with violating Islip Town Code § 68-339 alleging the storage of construction material, is denied and said superseding accusatory instrument is reinstated.

Islip Town Code § 68-23 (A) provides in part as follows:
" Permit required; exceptions; application.
A. It shall be unlawful to construct, alter, remove or demolish or to allow, commence or maintain the alteration, removal or demolition of a building or structure, or any part thereof, without first filing with the Building Division an application in writing and obtaining a formal written permit."

The superseding information charging defendant with violating Islip Town Code § 68-23 (A) is legally sufficient since it substantially conforms to the requirements of CPL 100.15 and contains nonhearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof by maintaining the alteration without obtaining a permit (see CPL 100.15 [3]; 100.40; People v Alejandro,
70 NY2d 133 [1987], supra). We note that the cases of People v Hall (4 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2004]) and People v Denizard (2 Misc 3d 136[A], 2004 NY Slip Op [*5]50233[U] [App Term, 9th & 10th Jud Dists 2004]), wherein the accusatory instruments charging defendants with maintaining a building or structure without a permit were dismissed as jurisdictionally defective, are not to be followed, since these cases were decided before the subject section was amended. Islip Town Code § 68-23 (A) as amended now prohibits maintaining an alteration of a building or structure without obtaining a permit. Accordingly, the portion of the order which sua sponte dismissed the superseding information charging defendant with violating Islip Town Code § 68-23 (A) is stricken and said superseding information is reinstated.

We find that the superseding information charging defendant with violating Islip Town Code § 68-339, which contains, inter alia, factual allegations that defendant "maintain[ed] the outdoor storage of commercial construction vehicles, namely a cherry picker' bucket truck, and between two (2) and five (5) flat bed type trucks," is jurisdictionally defective. Outdoor storage, as defined in the Islip Town Code, incorporates the definition of storage under Islip Town Code § 68-3, and the People were required to plead as an element of the offense charged that the motor vehicles in question allegedly stored by defendant were unregistered during the period they were maintained in outdoor storage. Since said superseding information failed to contain
such an allegation, the lower court properly granted the branch of defendant's motion seeking to dismiss this superseding information.

Rudolph, P.J., and McCabe J., concur.

Tanenbaum, J., taking no part.
Decision Date: August 13, 2008