Opinion
2012-12-21
PEOPLE of the State of New York, Respondent, v. MASTER ALLAH, Cal. No. 10–303, Defendant–Appellant.
Legal Aid Society, New York City (Steven Banks and Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Yuval Simchi-Levi of counsel), for respondent.
Legal Aid Society, New York City (Steven Banks and Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Yuval Simchi-Levi of counsel), for respondent.
PRESENT: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Judgment of conviction (Frederic S. Berman, JHO), rendered August 25, 2009, reversed, on the law, accusatory instrument dismissed, and fine, if paid, remitted.
The underlying information, charging defendant with violating New York City Parks and Recreation Department Rules (56 RCNY) § 1–04, alleged that defendant, at a specified location at 7:48 p.m. on March 7, 2009, was observed inside a City park “after dusk” in violation of a sign posted at the park entrance stating that the park closed at dusk. These allegations, while arguably sufficient to make out a violation of section 1–03 of the Parks Department rules, headed “Hours of operation,” which prohibits persons from being in city parks after their posted closing times ( see 56 RCNY 1–03[c] [2]; People v. Davis, 13 N.Y.3d 17, 21, 31–32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ), were clearly insufficient to establish prima facie defendant's violation of Parks Department rule 1–04, the only violation asserted in the information or relied upon by the People as a basis for affirmance on appeal. Section 1–04 of the Parks Department rules sets forth a wide array of “Prohibited Uses” of city parks, making it unlawful, for example, to engage in such proscribed conduct as “Destruction or abuse of property and equipment” (subd. [a] ), “Abuse of park animals” (subd. [g] ), “Urination and defecation” (subd. [k] ) and “Unhygienic use of fountains, pools, and water” (subd. [r] ); however, section 1–04 cannot reasonably be read to criminalize a person's mere presence in a city park, even if such presence is shown to be violative of a prohibition posted on a park sign, conduct which, as indicated, is forbidden elsewhere in the Parks Department rules. The People's present attempt to pigeonhole defendant's conduct into the type of “Disorderly behavior” proscribed by rule 1–04( l )(i) is unavailing, since defendant was not given fair notice of that theory in the People's pleading, which contains no allegation tending to indicate that defendant acted in a disorderly manner by “enter[ing] or attempt[ing] to enter any [park] facility, area or building sealed, locked or otherwise restricted from public access.”
In view of our disposition of the case on jurisdictional grounds, we have no occasion to address defendant's remaining point.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.