Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), rendered December 3, 2007. The judgment convicted defendant, after a nonjury trial, of clearing indigenous natural vegetation.

Judgment of conviction reversed on the law, accusatory instrument dismissed, and fine, if paid, remitted.

The People charged defendant with clearing indigenous natural vegetation from his property in violation of section 255-3-65 (E) (1) of the Code of the Town of East Hampton. While the People proved at trial that the property had been excessively cleared of indigenous natural vegetation, the People failed to prove that defendant committed an actual clearing as charged, and acknowledged that the property's prior owner had been convicted of the offense. While another regulation confers liability on an owner for maintaining an illegally cleared lot even if the owner is not responsible for the actual clearing, the court could not constructively amend the accusatory instrument to allege an uncharged offense based on a different theory of misconduct (see People v Grega, 72 NY2d 489, 498 [1988]). Defendant's admission that the land had been illegally cleared for the entire period of defendant's ownership was not evidence of the offense for which he was charged (id. at 499), and we do not agree that penal liability for the actual clearing was transferred to defendant upon his purchase of the property. Having elected to proceed on a theory of the offense's commission different from that alleged in the accusatory instrument, the People were bound by it (see e.g. People v Barnes, 50 NY2d 375, 379 n 3 [1980]).

Accordingly, the judgment of conviction is reversed, the accusatory instrument dismissed, [*2]and the fine, if paid, remitted.
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 30, 2009