Appeal from judgments of the Justice Court of the Town of Orangetown, Rockland County (Richard G. Ramsay, J.), rendered November 22, 2005. The judgments convicted defendant, after a nonjury trial, of two charges of keeping an animal that caused prohibited noise.

Judgment of conviction under Docket Number 04060624 reversed, on the law, accusatory instrument dismissed, and fine, if paid, remitted.

Judgment of conviction under Docket Number 04080041 reversed, as a matter of discretion in the interest of justice, accusatory instrument dismissed, and fine, if paid, remitted.

With respect to Docket Number 04060624, the relevant sections of the Code of the Town of Orangetown are:
§ 22-2. Excessive noise prohibited.
It shall be unlawful for any person to make, to continue or cause to be made or continued any excessive, unnecessary, unusually loud or unusually disturbing noise within the limits of the town.
§ 22-3. Prohibited noises. [*2]
The following acts are declared to be excessive, unusually loud, unusually disturbing and unnecessary noises in violation of the local law.
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E.Animals. The keeping of any dog or other animal which, by causing frequent or long continued barking or other noise, shall disturb the comfort or repose of any persons in the vicinity."

The information is facially insufficient because its allegations fail to establish, if true, every element of the offense charged (see CPL 100.40 [1] [c]; 100.15 [3]).
Specifically, the information alleges that on June 25, 2004, at about 8:26 P.M., at 65 Woods Road, Palisades, Rockland County, "the defendants [sic] peacock was croaking and squawking which caused a disturbance to me." There is no factual allegation to the effect that the croaking or squawking was "frequent" or "long continued" (Code of the
Town of Orangetown § 22-3 [E]). The defect in the information is jurisdictional and nonwaivable, and the information must therefore be dismissed (see People v Konieczny, 2 NY3d 569, 573 [2004]; People v Alejandro, 70 NY2d 133 [1987]; see also People v Mitchell, 10 NY3d 819, 820-821 [2008]).

With respect to Docket Number 04080041, defendant argues that the evidence was legally insufficient to prove that the disturbing noise heard by the complainant was made from a peacock being kept by him (see Code of the Town of Orangetown § 22-3 [E]). Although this argument is not preserved, we exercise our interest of justice jurisdiction to reach it. We agree with defendant. He was apparently convicted under the theory that he was "keeping" the three to nine peacocks allegedly seen on his property by prosecution witnesses on various dates other than July 27, 2004, the date to which the information refers, and that the noise on July 27, 2004, was made by one of these peacocks. Even if it is assumed, arguendo, that defendant was, in fact, "keeping" these particular peacocks, the evidence was legally insufficient to establish that the noise heard on July 27, 2004, was made by one of them. We note that were
we not reversing on the basis that the evidence is legally insufficient, we would find that the verdict of guilt was against the weight of the evidence.

Accordingly, the judgments of conviction are reversed and the accusatory instruments dismissed. In view of our disposition, we do not reach defendant's remaining arguments.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: February 27, 2009