Opinion
September 14, 1992
Appeal from the Family Court, Westchester County (Bellantoni, J.).
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed.
The Westchester County Attorney's Office (hereinafter the presentment agency) filed a petition charging the appellant Fidel C. with committing an act, which, if committed by an adult, would have constituted the crime of criminal trespass in the third degree. The petition and supporting depositions alleged, and the proof at the fact-finding hearing indicated, that on December 11, 1989, the appellant remained unlawfully in the Galleria Shopping Mall in White Plains, having previously been the subject of a "bar-out" from the shopping mall on November 10, 1989. However, the presentment agency failed to prove that its witness, a security guard at the shopping mall who issued the "bar-out" on November 10, 1989, had the authority to do so. It is well settled that in a prosecution for criminal trespass in the third degree on property open to the public, "the People have the burden of proving that [the] * * * order [to stay off the property] was communicated to the defendant by a person with authority to make [the] order" (People v Leonard, 62 N.Y.2d 404, 408). Accordingly, the petition must be dismissed.
In view of our determination, we need not address the remaining issues raised by the appellant. Mangano, P.J., Rosenblatt, O'Brien and Copertino, JJ., concur.