MICHELLE A. ARMSTRONG

Sarah E. Trent, New York County Legal Aid Society, for Defendant. ADA Sarah Marquez, New York County District Attorney's Office, for People.
MICHELLE A. ARMSTRONG, J.

The defendant, David Richardson, is charged by Information with Criminal Trespass in the Second and Third Degrees in violation of PL §§ 140.15 and 140.01(e) respectively. The following facts are alleged in the Information:

Deponent [Officer Ioannis Kyrkos] states that on December 19, 2010, at 6:00 p.m., inside of 705 East 5th Street [a New York City Housing Authority Building], in the County and State of New York, while on patrol inside the above location, an apartment building where people reside, deponent observed the defendant [and co-defendant Shawn Riddick] inside the lobby of the dwelling beyond the vestibule and that said location is beyond a posted sign which read, “No Trespassing”.

Deponent further states that the defendant [and co-defendant Shawn Riddick] are not tenants in that defendant [and co-defendant Riddick] provided addresses different from the above location and defendants are not invited guests in that the defendant [and co-defendant Riddick] were unable to provide the identity of a resident of whom defendant [and co-defendant Riddick] were invited guests.

Deponent determined that defendant [and co-defendant Riddick] did not have permission or authority to be inside the dwelling based on Information and belief the source of which is as follows: deponent observed the defendant [and co-defendant Riddick] trespass inside a Housing Authority Building.

Deponent is a member of the New York Police Department and as such is an agent of this dwelling and the defendant [and co-defendant Riddick] did not have permission or authority to enter or remain in the area in which the defendants were found.

Defendant Richardson now moves to dismiss the instant Information as facially insufficient pursuant to Criminal Procedure Law (CPL) §§ 170.30(1)(a) and 170.35. Specifically, defendant posits that public housing buildings, even if dwellings, are beyond the purview of the Trespass in the Second Degree statute. Rather, defendant urges, the applicable charge is Trespass in the Third Degree pursuant to PL § 140.10(e) in light of the allegation that defendant was in the lobby of a New York City Housing Authority (hereinafter NYCHA) building as opposed to the individual apartment of one of the building residents. Moreover, defendant argues, that while applicable to the allegations contained in the Information, the Trespass in the Third Degree count is also facially insufficient as the pleadings fail to establish a prima facie case that defendant was not an invited guest. Conversely, the People contend that the facts alleged in the accusatory instrument establish reasonable cause to believe defendant committed the offenses charged. For the reasons stated herein, the defendant's motion to dismiss on ground of facial insufficiency is denied in its entirety.

ANALYSIS:

To be sufficient on its face, a misdemeanor Information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged (CPL §§ 100.15[3]; 100.40[1][b] and [c]. The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it (CPL § 70.10[2] ). An Information which fails to satisfy this prima facie case requirement is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Kalin, 12 NY3d 225878 N.Y.S.2d 653 [2009]; People v. Alejandro, 70 N.Y.2d 133 [1987];People v. Dumas, 68 NY3d 729 [1986] ).

This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial. People v. Henderson, 92 N.Y.2d 677, 680 (1999). In reviewing an accusatory instrument for facial insufficiency, “[s]o long as the factual allegations of an Information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, [it] should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000). Moreover, the Court of Appeals, in People v. Allen (99 N.Y.2d 378, 385 [1998] ), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorableto the People. However, the court is not required to abandon common sense or the significance of the alleged conduct. See People v. Gibble, 2 Misc.3d 510, 512 (Crim Ct., N.Y. County 2003).

Trespass in the Second Degree (PL § 140.15) applies to any multi-unit apartment building, whether privately or publicly owned, provided the building meets the statutory definition of a “dwelling” under PL 140.00(3).

A person is guilty of Criminal Trespass in the Second Degree, a Class A misdemeanor, in violation of PL § 140.15 when he knowingly enters or remains unlawfully in a dwelling. See PL § 140.15. A person is guilty of Criminal Trespass in the Third Degree, a Class B misdemeanor, in violation of PL § 140.10(e) when he knowingly enters or remains unlawfully in a building where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. See PL § 140.10(e). Hence, whether the applicable charge is Trespass in the Second Degree, Third Degree, and/or both necessarily turns on the type of structure allegedly entered as defined by the statute; a “dwelling” or a “building”.

The Trespass statute provides a clear definition of the statutory terms relative to such offenses. Penal Law § 140.00(2) states, in relevant part, that in addition to its ordinary meaning, a “building” includes any structure used for overnight lodging of persons; including vehicles and/or watercraft if used for this purpose. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building. See PL § 140.00(2). Penal Law § 140.00(3) defines “dwelling” as a building which is usually occupied by a person lodging therein at night. Clearly a NYCHA residential apartment building which is occupied daily by person[s] lodging therein at night constitutes both a “building” and a “dwelling” as those terms are defined by the statute.

Following defendant's argument to its logical conclusion, defendant posits that whereas here, a residential apartment building is owned by a public entity rather than a private entity, the “general public” enjoys unfettered access to all areas within such building whether they reside there or not; including the lobby, stairways, and hallways of NYCHA buildings, which defendant claims are “open to the public.” However, this argument contravenes the very legislative intent, as advanced by defendant, of the Trespass in the Third Degree statute upon which defendant relies; to wit, the public safety of NYCHA building residents.

Courts have consistently held that the common hallways, lobbies, and stairwells of residential buildings are dwellings within the meaning of the statute, and as such, these areas are inherently and undeniably private common areas not open to the general public. See People v. Taveras, 17 Misc.3d 1119(A), 2007 N.Y. Slip Op 52067(U), 851 N.Y.S.2d 73 (Crim Ct. N.Y. County 2007); see also People v. Torres, 162 A.D.2d 385, 556 N.Y.S.2d 920 (1st Dep't 1990)( locked apartment building lobbies, not open to the public, meet statutory definition of dwelling ); People v. Lawlor, 219 A.D.2d 528, 631 N.Y.S.2d 676 (1st Dep't 1995)( apartment building hallway with locks and intercom determined to be a dwelling ); see also People v. Maissonet, 304 A.D.2d 674 (2d Dep't 2003); People v. Ivory, 99 A.D.2d 154, 473 N.Y.S.2d 28 (3d Dep't 1984); People v. Monge, 248 A.D.2d 558, 670 N.Y.S.2d 200 (1998); People v. Stephenson, 116 A.D.2d 756 (2d Dep't 1986); People v. Green, 141 A.D.2d 760, 529 N.Y.S.2d 852 (2d dep't 1988)( a garage beneath a house without and interconnecting door deemed a dwelling ). Specifically, in Taveras, the court reasoned that, in the context of the trespass statute, it does not matter that lobbies, hallways. and stairwells are shared by tenants and their invited guests; for merely establishing a common private space that is shared by some does not imply that such space is therefore shared by all. Id.

Accordingly, this court finds that the pleadings establish, prima facie, that defendant entered a dwelling wherein it is alleged that he was in the lobby of a NYCHA residential apartment building, beyond the vestibule area, and beyond a posted sign which read “No Trespassing.” See People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13 (1990), lv den'd,76 N.Y.2d 742 (1990); People v. Eastmon, 19 Misc.3d 824, 855 N.Y.S.2d 353 (Crim Ct. N.Y. County 2008); People v. Quinones, 2007 Slip Op 50091(U) (App Term, 1st Dep't 2002); People v. Delossantos, 32 Misc.3d 865, 924 N.Y.S.2d 258 (Crim Ct. N.Y. County 2011); People v. Scott et al, 8 Misc.3d 428, 797 N.Y.S.2d 847 (Crim Ct. N.Y. County 2005); People v. Nichson, 32 Misc.3d 1224(A), 936 N.Y.S.2d 60 (Crim Ct. N.Y. County 2011).

The Information contains sufficient non-hearsay factual allegations of an evidentiary nature establishing reasonable cause to believe that defendant committed Criminal Trespass in the Third Degree and every element thereof.

As stated above, a person is guilty of Criminal Trespass in the Third Degree pursuant to PL § 140.10(e) when he knowingly enters or remains unlawfully in a building where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. See PL § 140.10(e). Defendant urges that the Trespass in the Third Degree count charged herein is facially insufficient because the Information fails to provide sufficient non-hearsay allegations establishing that the defendant was not an invited guest.

A person “[e]nters or remains unlawfully” when he is not licensed or privileged to do so. See PL § 140.00(5). Generally, a person is licensed or privileged to enter private premises when he has obtained the consent of the owner or another whose relationship to premises gives him authority to issue such consent. People v. Graves, 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16 (1990); See also People v. Eastmond, 19 Misc.3d 824, 826, 855 N.Y.S.2d 353 (Crim Ct. N.Y. County 2008). A license or privilege to enter or remain in a building which is only partly open to the public, is not a license or privilege to enter or remain in that part of the building which is not open to the public. See PL § 140.00(5). When, however, such license or privilege is absent, a person is presumed to have entered or remained unlawfully and the burden of proving this element rests with the People. People v. Brown, 25 N.Y.2d 374 (1969); Eastmon, supra at 827; People v. Taveras, 17 Misc.3d 1119(A), 2007 N.Y. Slip Op 52067(U), 851 N.Y.S.2d 73 (Crim Ct. N.Y. County 2007). In this case, the deponent alleged that his determination that defendant did not have permission or authority to be inside of the lobby of the NYCHA apartment building, beyond the vestibule area and posted signs which read “No Trespassing, was based on the following facts: (1) defendant provided an address different from the building wherein he was found; and (2) defendant was unable to provide the identity of a resident of whom defendant was an invited guest.

It is well settled that the defendant has a right to refuse to answer questions posed to him by law enforcement personnel and such refusal may not give rise to criminal consequences. See U.S. Const. Amend. V; Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461 (1936). However, whereas here, the complaint alleges that defendant provided pedigree information inconsistent with his residence in the dwelling; was observed in the lobby of the apartment dwelling “beyond the vestibule area,”; and in violation of posted “No Trespassing” signs, the Information is facially sufficient, at the pleading stage, to establish defendant's unlawful entry without privilege or license to do so. See People v. Davis, 13 NY3d 17, 884 N.Y.S.2d 665 (2009); People v. Messina, 32 Misc.3d 318, 919 N.Y.S.2d 814 (Crim Ct.. Kings County 2011) ( People are not required to allege facts, at the pleading stage, negating the possibility that the defendant was an invited guest of a tenant in a NYCHA building ).

In People v. Davis, supra, defendant was convicted of violating a New York City Parks and Recreation Department rule that prohibited persons from being in city parks after posted closing times; except that a person may disregard the posted park closing signs upon order by a police officer or designated Department employee. The Information, in Davis, provided only that the defendant was observed in the park after hours and did not state whether a police officer or designated Department employee authorized defendant to disregard the signs and remain in the park after closing. The Court of Appeals determined that the qualifying language in the park rules statute constitutes a proviso rather than an exception; and as such, the People were not required to establish, at the pleading stage, that defendant had permission to remain in the park after closing with the express authorization from a police officer or Department employee. See Davis, supra at 31–32.

Following the Davis court rationale, this Court finds that the issue of whether defendant was, in fact, an invited guest to the dwelling, and therefore enjoyed a privilege or license to enter the lobby area of the apartment building beyond the vestibule area constitutes a proviso, rather than an exception to the trespass statute. As such, defendant is required to raise this issue as a bar to the instant prosecution, but it is not necessary that the accusatory instrument negate the possibility of defendant's privilege or license to remain on said premises, at the pleading stage. See Messina, supra at 324–325; see also People v. Orimogunje, 2012 N.Y. Slip Op 22055, 924 N.Y.S.2d 817 (Crim Ct.. Bronx County 2012). The instant Information having established, minimally, that defendant did not reside in the dwelling and was present at said location in violation of posted “No Trespassing” signs, is sufficient, for pleading purposes, to sustain the charge of Trespass in the Third Degree. See Messina, supra at 325.

Accordingly, for the foregoing reasons, it is hereby ordered that defendant's motion to dismiss on ground of facial insufficiency is denied in its entirety.

The foregoing constitutes the opinion, decision, and order of the court.