Appeal from judgments of the Justice Court of the Village of Elmsford, Westchester County (Richard J. Leone, J.), rendered April 18, 2007. The judgments convicted defendant, after a nonjury trial, of having an illegal dwelling unit in a basement and having an illegal dwelling unit over a garage in violation of both chapter 7 of the Property Maintenance Code of New York State and section 109-1 of the Code of the Village of Elmsford.

Judgments of conviction reversed upon the law, accusatory instruments dismissed and fines, if paid, remitted.

Defendant was charged with, and convicted of, violating both the Code of the Village of Elmsford and the Property Maintenance Code of New York State.

As to the State Code violations, the Code was created pursuant to the New York State Uniform Fire Prevention and Building Code Act (Executive Law § 370 et seq.). The State Code was not intended by the Legislature to be applicable, however, to local governments which had their own building codes (Executive Law § 373 [1]), and, on this appeal, the People concede that in 2007, i.e., subsequent to the date of the alleged offenses, July 12, 2006, "the Village, by Local Law No. 1 of 2007 replaced its Chapter 109 with the provisions of the New York State Uniform Fire Prevention and Building Code." Thus, defendant was improperly charged and convicted under the State Code. Accordingly, the accusatory instruments charging defendant with violating [*2]chapter 7 of the Property Maintenance Code of New York State are dismissed.

With respect to the accusatory instruments asserting violations of section 109-1 of the Code of the Village of Elmsford, defendant was charged with having an illegal dwelling unit in a basement and having an illegal dwelling unit above a garage. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is no "valid line of reasoning and permissible inferences from which a rational [trier of fact] could have found the elements of the [offenses] proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007]). The building inspector, upon being asked, "[W]hat sort of Certificate of Occupancies are there for that property on file with the Village?" answered, "There is an original Certificate of Occupancy for the original dwelling as a one-family dwelling. Then there is a conversion for the basement as a Two-family . . ." Upon being shown what had been described as a certificate of compliance with zoning and building regulations and a certificate of occupancy for the basement, the building inspector said that he was aware of them and that "these documents appear to be related to a second dwelling unit that is located in the basement." With regard to the dwelling unit alleged to be above the garage, the building inspector admitted that he did not go there after service upon defendant of the notice to remove the dwelling unit, and he offered no specific testimony to support his conclusion that a dwelling unit was still there. Although defendant's wife took the witness stand, her brief testimony was too
vague to supply any deficiencies in the People's proof.

Under the circumstances, therefore, the judgments of conviction are reversed and the accusatory instruments dismissed.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: October 30, 2008