Appeal from an order of the District Court of Nassau County, Fourth District (Sharon M. Gianelli, J.), entered December 12, 2007. The order granted a motion by defendant to dismiss the accusatory instrument as insufficient on its face.

Order affirmed.

The People appeal from an order granting defendant's motion to dismiss the accusatory instrument. The first count of the accusatory instrument charged defendant with violating section 93-15 of the Code of the Town of Oyster Bay, pertaining to an alleged failure to obtain a building permit for the construction of an in-ground swimming pool and an addition to a building. The second count charged a violation of section 93-30 of said code, pertaining to an alleged failure to obtain a certificate of occupancy for the pool and the addition to the building.

The District Court did not improvidently exercise its discretion in entertaining defendant's motion to dismiss the accusatory instrument as jurisdictionally defective even though the motion was not filed within 45 days after the arraignment (see CPL 170.30 [2]; 255.20 [1]). The motion had to be filed "within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant prior to entry of judgment" (CPL 255.20 [2]). Since the defects were alleged to be jurisdictional, it was in the interest of judicial economy for the court to consider the pretrial motion.

The first count, pertaining to the alleged failure to obtain a building permit, was properly dismissed. This count was insufficient because it was lacking facts of an evidentiary character supporting or tending to support the charges (CPL 100.15 [3]; 100.40 [1] [a]), it failed to provide reasonable cause to believe that defendant committed the offense charged (CPL 100.40 [1] [b]), and it lacked non-hearsay allegations establishing, if true, every element of the offense charged (CPL 100.15 [3]; 100.40 [1] [c]). Specifically, the accusatory instrument contained no factual [*2]allegations stating that defendant did any work on the swimming pool or addition to the house "without first obtaining a building permit therefor" (Code of Town of Oyster Bay § 93-15 [A]). Furthermore, while the factual part of the information did allege that the swimming pool and addition were observed by the complainant following the expiration of named permits, there were no allegations to the effect that any work was done following the expiration of those permits.

The second count of the accusatory instrument was also insufficient on its face. Section 93-30 of the Code of the Town of Oyster Bay states in part, "In case of an existing building, no change of occupancy that would bring it under some special provision of this chapter shall be made unless the Commissioner of the Department of Planning and Development, upon inspection, finds that the building conforms substantially to the provisions of this chapter with respect to the proposed new occupancy and use, and issues a certificate of occupancy therefor." The factual part of the second count states, "To Wit: Deponent observed subject premise has an inground swimming pool installed at rear yard and an existing second story rear addition installed without first filing for or obtaining a certificate of occupancy from the Division of Building of the Town of Oyster Bay as required by law." By its wording, section 93-30 envisions the obtaining of a certificate of occupancy under circumstances involving "some special provision of this chapter." The factual part of the accusatory instrument, however, failed to assert what special provision, if any, was applicable.

Accordingly, the order granting defendant's motion to dismiss the accusatory instrument is affirmed.

Rudolph, P.J., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009