Opinion
No. 2015BX012102.
08-06-2015
The PEOPLE of the State of New York v. Tony GRAHAM, Defendant.
Robert T. Johnson, District Attorney by Assistant District Attorney Eugene Bykov, Bronx, for the People of the State of New York. Emily V. Galvin, Esq., The Bronx Defenders, Bronx, for Defendant.
Robert T. Johnson, District Attorney by Assistant District Attorney Eugene Bykov, Bronx, for the People of the State of New York.
Emily V. Galvin, Esq., The Bronx Defenders, Bronx, for Defendant.
STEVEN HORNSTEIN, J.
By omnibus motion, filed June 25, 2015, the defendant seeks dismissal of the superseding accusatory instrument for facial insufficiency. The Court, having reviewed the defendant's moving papers, the People's response and all relevant court documents, concludes as follows:
"The factual part of a misdemeanor complaint must allege facts of an evidentiary character (CPL § 100.15[3] ) demonstrating reasonable cause to believe the defendant committed the crime charged (CPL § 100.40[4][b] )." People v. Dreyden, 15 NY3d 100, 102 (2010). CPL § 100.40 provides that an information is sufficient on its face when it substantially conforms with the requirements prescribed in CPL § 100.15 and when it contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged and non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof. CPL § 100.40(1)(a)(b)(c). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10(2).
Compliance with CPL § 100.40(1)(c) is referred to as the "prima facie case requirement." People v. Jones, 9 NY3d 259, 262 (2007). Failure to establish a "prima facie " case constitutes a jurisdictional defect to the criminal action. People v. Kalin, 12 NY3d 225 (2009). 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). "Nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on proof presented at trial" (see Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 100.40 at 388 [2004 ed] ). Facial sufficiency analysis requires the Court to assess the non-hearsay evidentiary allegations contained within the "four corners of the instrument itself" to determine whether the "prima facie case requirement" has been met. People v. Thomas, 4 NY3d 143, 146 (2005). "So 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, they should be given a fair and not overly restrictive reading." People v. Casey, 95 N.Y.2d 354, 360 (2000). Ultimately, the Court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, when viewed in the light most favorable to the People would, if true, establish every element of the crime charged. People v. Barona, 19 Misc.3d 1122(A) (Crim. Ct, New York County 2008).
The instant accusatory instrument is comprised of a superseding misdemeanor information. The information accuses the defendant of one count each of criminal trespass in the second degree (PL § 140.15[1] ), criminal trespass in the third degree (PL § 140.10[e] ) and trespass (PL § 140.05). The factual portion of the complaint alleges, in pertinent part, that on or about December 2, 2014, at approximately 2:03 a.m., Police Officer Castillo observed the defendant inside the lobby of a New York City Housing Authority apartment building; that the building had a locked entrance door, a buzzer/intercom system and conspicuously posted signs indicating "no trespassing, tenants and their guests only"; that the defendant, when asked if he lived in the building, responded, in sum and substance, "no"; and when asked if he knew anyone who lived in the building, responded "yes" but "was unable to provide a tenant's name or legitimate purpose for being inside the location"; that the defendant stated he lived at another address; that the officer, in his capacity as a New York City Police Officer, was the lawful custodian of the building; that the defendant did not have permission or authority to enter or remain inside the building; and that the building was a dwelling. See Superseding information, People v. Graham, Dkt.2015BX012102.
The defendant maintains that the accusatory instrument is facially insufficient in that it fails to establish that he was unlawfully present on the premises and fails to establish that his conduct constituted a knowing violation of the trespass statutes. See Defendant's Memorandum of Law at 5. The People oppose dismissal and contend that the complaint "provides adequately detailed facts that support the charges and suitable notice for defendant to prepare a defense ..." See People's affirmation at 3.
Penal Law § 140.15(1) provides: "A person is guilty of Criminal Trespass in the Second Degree when he ... knowingly enters or remains unlawfully in a dwelling." PL § 140.10(e) provides: "A person is guilty of Criminal Trespass in the Third Degree when he knowingly enters or remains unlawfully in a building or upon real property when the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof." PL § 140.05 provides: "A person is guilty of Trespass when ... he knowingly enters or remains unlawfully in or upon premises."
Common to each of these offenses is the element of unlawful entry or remaining. Penal Law (PL) § 140.00(5) provides, in pertinent part: "[a] person enters or remains unlawfully upon premises when he is not licensed or privileged to do so." Generally, "a person is licensed or privileged' to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent." People v. Marsden, NYLJ, 7/24/15 (2d Dept 2015), citing People v. Graves, 76 N.Y.2d 16, 20 (1990) ; see also People v. Brown, 25 N.Y.2d 374, 377 (1969).
Circumstantial evidence may support a finding of unlawful entry or remaining. See People v. Jackson, 118 AD3d 635, 636 (1st Dept 2014), lv denied 24 NY3d 1044 (2014) ("A lack of license or privilege to enter premises may be established by circumstantial evidence, including evidence of consciousness of guilt ... defendant initially lied to the police about being a resident of the building, and then admitted he was not ... his false statement evinced a consciousness of guilt"); People v. Livingston–Boyd, 32 Misc.3d 143(A) (App Term, 1st Dept 2011), lv denied 18 NY3d 860 (2011) (accusatory instrument alleging that the defendant was observed inside the lobby of a public housing project equipped with locked entrance door, buzzer system and "no trespassing" signs; the defendant's acknowledgment that he did not live in the building; and the officer's inability to locate the defendant's unnamed "friend" in the apartment specified by the defendant was facially sufficient); People v. McCray, 21 Misc.3d 127(A) (App Term, 1st Dept 2008), lv denied 11 NY3d 927 (2009) (accusatory instrument alleging that the defendant was observed inside the lobby of a building marked by no trespassing signs, equipped with a locked entrance door and an internal buzzer system; defendant's statement he was on his way to visit an unnamed friend, who, defendant admitted, lived elsewhere and the defendant's inability to explain his presence in the building was facially sufficient); People v. Maresca, 19 Misc.3d 133(A) (App Term, 1st Dept 2008), lv denied 11 NY3d 738 (2008) (accusatory instrument alleging that the defendant was observed inside the lobby of an apartment building marked by "no trespassing" signs, locked entrance door and a buzzer system"; the defendant's admission he lived elsewhere; and the officer's inability to verify the defendant's claim he was there to visit "Arlene in apartment 1–H" was facially sufficient); People v. Hendricks, 43 AD3d 361 (1st Dept 2007) (upon learning the defendant was not a resident, the police were justified in asking the defendant if he was visiting someone in the building and asking who that someone was; defendant's inability to supply information, even after taking the officer to two separate floors, provided probable cause for a trespass arrest); People v. Taveras, 17 Misc.3d 1119(A)(Crim Ct, New York County 2007) (accusatory instrument alleging that the defendant was observed in lobby of a building, beyond a locked entrance door with buzzer system; his inability to state the name or apartment number of the tenant he was visiting and his false statement that his sister lived in the building was facially sufficient); People v. Johnson, 8 Misc.3d 137(A) (App Term, 1st Dept 2005), lv denied 5 NY3d 853 (2005) (accusatory instrument alleging that the defendant was observed inside the lobby of an apartment building equipped with locked entrance door, buzzer system and marked no trespassing and other signs restricting access; defendant's admission that he lived elsewhere and the officer's inability to locate "Cookie" in apartment 1–G, the person the defendant claimed to be visiting, was facially sufficient); People v. Darling, 8 Misc.3d 127(A) (App Term, 1st Dept 2005)lv denied 5 NY3d 851 (2005) (accusatory instrument alleging that the defendant was observed inside the lobby of an apartment building equipped with a locked entrance door and buzzer system; the defendant's admission he lived elsewhere; his inability to identify the apartment of the person he was purportedly visiting; and the officer's inability to find Eddie listed on the building's tenant roster was facially sufficient).
In each of the above-cited cases, the accusatory instrument contained, to varying degrees, allegations that the defendant was observed in an apartment building, beyond locked entrance doors, buzzer systems and no trespassing signs; an admission by the defendant that he lived elsewhere; and the defendant's either untrue or unverifiable explanation that he was visiting a building tenant. Here, although the accusatory instrument does not allege that the defendant provided false or unverifiable information, it does allege that the defendant was "unable to provide a tenant's name or legitimate purpose for being inside" the location.
New York courts have consistently held that a defendant's inability to explain one's presence in a building, when coupled with allegations that the defendant was observed inside a building, beyond locked entrance doors, a buzzer system and no trespassing signs and the defendant's admission that he lived elsewhere, is sufficient, for pleading purposes, to establish trespass. See People v. Quinones, 2002 N.Y. Slip Op 50019U (App Term, 1st Dept), lv denied 98 N.Y.2d 680 (2002) (officer's observation of defendant in the lobby of a public housing apartment building equipped with a locked entrance and buzzer system; the defendant's admission he resided elsewhere and his inability to identify the surname or apartment number of the "good friend" he claimed to be visiting sufficient for pleading purposes); People v. Barnes, 40 Misc.3d 133(A) (App Term, 1st Dept 2013) (officer's observation of defendant inside public housing apartment lobby, beyond the vestibule, in an area located beyond a posted "No Trespassing" sign; the defendant's acknowledgment he lived at another address and his inability to provide the identity of a resident in the building found facially sufficient); People v. Henry O., 47 Misc.3d 136(A) (App Term, 2d Dept 2015) (officer's observation of defendant in the second floor hallway of the building, beyond a conspicuously posted sign prohibiting loitering and trespassing in the lobby, roof, hallways and stairs; the defendant's admission that he lived at another address and his inability to provide a name and apartment number of a tenant who had invited him into the building held sufficient); People v. Nichson, 32 Misc.3d 1224(A) (Crim Ct, N.Y. County 2011) (allegation defendant was not a tenant of building and his inability to provide identification of the resident that had allegedly invited him to building, sufficient at pleading stage); People v. Easton, 16 Misc.3d 1105(A) (Crim Ct, N.Y. County 2007) (officer's observation of defendant inside the lobby of a New York City Housing authority building; beyond the vestibule and a no trespassing sign; the defendant's statement he lived elsewhere; and his inability to provide the identity of a resident who had invited him to the building, sufficient for pleading purposes); cf. People v. Ruiz, 15 Misc.3d 1135(A) (Crim Ct, Bronx County 2007) (allegations defendant observed in lobby of a Clean Halls Building, beyond conspicuously posted signs and locked entrance doors; that he was not a resident of the building; and that he "gave no explanation for his presence in the building" insufficient to establish "defendant's presence in the lobby was unlawful").
This Court finds, in accordance with well-established precedent, the factual allegations of the instant accusatory instrument, when viewed in the light most favorable to the People, "are collectively of such weight and persuasiveness" that they establish reasonable cause to believe that the defendant committed the offenses charged and constitute a "prima facie " case with respect to those charges. See CPL § 100.40. This Court further finds that the allegations supply the defendant with sufficient notice of the charges against him and satisfy the demands of both due process and double jeopardy (see People v. Casey, 95 N.Y.2d at 360 ). Accordingly, the defendant's motion to dismiss the charges of criminal trespass in the second degree (PL § 140. 15 [1] ), criminal trespass in the third degree (PL § 140.10[e] ) and trespass (PL § 140 .05) for facial insufficiency is denied.
The defendant, citing People v. Spencerel, 2008 N.Y. Misc. LEXIS 5218 (Crim Ct, New York County 2008) and People v. Weatherspoon, 23 Misc.3d 1139(A) (Crim Ct, New York County 2009), also maintains that "the offense of trespass in a NYCHA building may not prosecuted under PL § 140.15." See defendant's affirmation at 9–11. In Spencerel, the Court held that the Legislature, by enacting PL § 140.10(e): [M]anifestly intended that trespass in public housing be prosecuted pursuant to Penal Law 140.10(e) because it was apparently the Legislature's belief that until adoption of that statute, such conduct would not be criminal, and the Legislature, in its view was not providing an alternative method for prosecuting trespassers in public housing but creating a new and exclusive crime.
The validity of the cases relied upon by the defendant, however, is highly suspect in light of conflicting lower court decisions and the appellate court's decision in People v. Barnes, 40 Misc.3d 133(A) (App Term, 1st Dept 2014). In Barnes the Court wrote:
Inasmuch as the common areas of a restricted access Housing Authority building can be shown, upon proper proof, to be open only to building residents and their invitees, and not the general public (citation omitted), we reject defendant's sweeping contention that the proscriptions of the second-degree criminal trespass statute can never be applied to conduct occurring in such areas.
In People v. Delossantos, 32 Misc.3d 865 (Crim Ct, N.Y. County 2011), the Court examined the legislative history underlying PL § 140.10(e) and found that "no authority ... holds or suggests that a person found trespassing in a public housing apartment building cannot be prosecuted for trespass in the second degree." See also People v. Nichson, 32 Misc.3d 1224(A) (Crim Ct, N.Y. County 2011) ("second degree criminal trespass does ... apply to public housing buildings"); People v. Scott, 8 Misc.3d 428 (Crim Ct, N.Y. County 2005) (persons inside a Housing Authority building may be charged with Criminal Trespass in the Second Degree); People v. Bright, Docket 2014BX004186 (Crim Ct, Bronx County, 2014).
Given the high incidence of crime, particularly violent crime, in NYCHA buildings (see Protecting NYCHA Communities, September 2012, Offices of the Manhattan Borough President Scott M. Stringer, State Senator Daniel Squadron and State Assembly member Brian Kavanagh), it is highly unlikely that legislators, in enacting PL § 140.10(e), intended to diminish the protections afforded to Housing Authority residents. Indeed, the legislative history underlying the statute strongly, and perhaps incontrovertibly, suggests that the legislature enacted the statute to provide law enforcement personnel with the statutory tools necessary to provide the same protections to public housing tenants that are afforded to private residential tenants. This Court finds, contrary to the defendant's contention, that the protections afforded to private residential buildings by PL § 140.15(1) are equally applicable to New York City Housing Authority buildings. Accordingly, the defendant's motion to dismiss the trespass charges (PL §§ 140.15) on the ground that it is inapplicable to a Housing Authority building is denied.
A memorandum submitted in support of PL § 140.10(e) provided: "Residents of public housing projects should be afforded the same right to safety as residents of private housing." See Bill Jacket, L 1992, ch 434, at 8. The Sponsor's letter to the Governor's Counsel in support of the Bill provided: "Under current law, residents of public housing projects have no protection against would be trespassers. The laws involving trespass to privately owned residential buildings should apply as well to public housing projects." Id at 10.
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All other arguments and requests for any additional hearings and relief that have been advanced by the defendant has been reviewed and rejected by this Court as being not applicable or without merit.