Opinion
No. 2012–592 K CR
04-03-2015
The PEOPLE of the State of New York, Respondent, v. HENRY O. (Anonymous), Appellant.
Opinion
Appeal from two judgments of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered February 8, 2012. Each judgment adjudicated defendant a youthful offender, upon his plea of guilty to disorderly conduct.
ORDERED that the judgments adjudicating defendant a youthful offender are affirmed.
An accusatory instrument charging defendant with criminal mischief in the fourth degree (Penal Law § 145.00[1] ), alleged, among other things, that, during the evening of October 13, 2011, in a building located at 240 Lott Avenue in Brooklyn, the director of security of the building observed defendant kick and break a glass window; that the director of security was the custodian of the building; and that defendant did not have permission or authority to damage that property.
Subsequently, a second accusatory instrument was filed, charging defendant with criminal trespass in the second degree (Penal Law § 140.15 ), criminal trespass in the third degree (Penal Law § 140.10[a] ), and trespass (Penal Law § 140.05 ), alleging, among other things, that, during the evening of December 3, 2011, a New York City police officer observed defendant inside the second floor hallway of 240 Lott Avenue, a building in which people resided; that signs were posted indicating that loitering and trespassing in the lobby, roof, hallways and stairs were not permitted; that the officer asked defendant if he was a tenant or an invited guest of someone in the building; that defendant responded that he lived at 230 Lott Avenue and that he “was chilling”; and that “the officer determined” that this response was false “because defendant couldn't give a name and apartment number” of a tenant in the building.
The officer's supporting deposition alleged, among other things, that defendant's location was beyond a conspicuously posted sign in the dwelling stating that loitering and trespassing were not permitted. Contrary to the allegations in the accusatory instrument, the supporting deposition alleged that defendant did not respond when the officer asked if he was an invited guest of someone in the building. However, the supporting deposition also alleged that defendant informed the officer that he “was chilling,” and that he “couldn't give [a] name and apartment number” of someone he was visiting in the building.
Defendant was adjudicated a youthful offender upon his pleas of guilty to two charges of disorderly conduct (Penal Law § 240.20[1] ) in satisfaction of the accusatory instruments. During the allocution, he waived prosecution by information.
On appeal, defendant claims that both accusatory instruments were informations. He asserts that the criminal mischief accusatory instrument was defective because the allegation that the building's director of security was the custodian of the property was conclusory, absent factual allegations regarding the relationship between the director's employer and the owner of the building. He further claims that the trespass accusatory instrument is defective because (1) it did not allege the basis for the officer's conclusion that defendant did not have license or privilege to be in the subject building, and (2) there were conflicting allegations in the accusatory instrument and the officer's supporting deposition.
As a threshold matter, because defendant's counsel, in open court and in defendant's presence, waived prosecution by information, “the facial sufficiency of the accusatory instrument[s]” must be measured “by the standard required of misdemeanor complaints” (People v. Dumay, 23 NY3d 518, 524 [2014] ; see People v. Lurk, 41 Misc.3d 144[A], 2013 N.Y. Slip Op 52061[U] [App Term, 2d, 11th & 13th Jud Dists 2013] ). Thus, defendant's assertion that the accusatory instruments in this case are informations is incorrect.
A misdemeanor complaint must “set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v. Dumay, 23 NY3d at 522 ) and provide “the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy' “ (Dumay, 23 NY3d at 524, quoting People v. Dreyden, 15 NY3d 100, 103 [2010] ). “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] ). A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement (see People v. Kalin, 12 NY3d 225, 229 [2009] ).
The factual allegations of the criminal mischief accusatory instrument and the supporting deposition met the reasonable cause requirement, as they informed defendant that he had intentionally damaged a window in the building by kicking and breaking it, without the right to do so or any reasonable ground to believe that he had such right (see Penal Law § 145.00[1] ; People v. Hills, 95 N.Y.2d 947, 948 [2000] ; People v. Ross, 112 AD3d 972, 974 [2013] ; People v. Suarez, 32 Misc.3d 132[A], 2011 N.Y. Slip Op 51406[U] [App Term, 9th & 10th Jud Dists 2011] ). These allegations provided defendant with sufficient notice to prepare a defense, and were adequately detailed to prevent him from being tried twice for the same offense (see People v. Kalin, 12 NY3d at 230 ). Contrary to defendant's assertion that the accusatory instrument and/or supporting deposition must also have contained allegations regarding the relationship between the employer of the building's director of security and the owner of the building to establish that the director of security was the custodian of the building, such allegations are “not only unnecessary for facial sufficiency, they are impractical as a matter of common sense” (People v. Eastmond, 19 Misc.3d 824, 827 [Crim Ct, N.Y. County 2008] ). Moreover, such allegations are not necessary to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that the offense was committed and that defendant committed it (CPL 70.10[2] ; see People v. Khramstov, 24 Misc.3d 143[A], 2009 N.Y. Slip Op 51760[U] [App Term, 1st Dept 2009] ).
The factual allegations of the trespass accusatory instrument and the supporting deposition—that a police officer observed 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; that defendant indicated that he lived at an address other than that of the subject building; and that he could not provide a name and apartment number of a tenant who had invited him into the building—were sufficient to establish that there was reasonable cause to believe that defendant lacked license or privilege to enter or remain in the subject building (see generally People v. Jackson, 18 NY3d 738, 747 [2012] ; People v. Barksdale, 110 AD3d 498 [2013] ; see also People v. Flores, 21 Misc.3d 141[A], 2008 N.Y. Slip Op 52371[U] [App Term, 2d & 11th Jud Dists 2008] ; People v. Richardson, 35 Misc.3d 1231[A], 2012 N.Y. Slip Op 50961[U] [Crim Ct, N.Y. County 2012] ; People v. Messina, 32 Misc.3d 318 [Crim Ct, Kings County 2011] ; People v. Quinones, 17 Misc.3d 1119[A], 2007 N.Y. Slip Op 52067[U] [Crim Ct, N.Y. County 2007] ; People v. Scott, 8 Misc.3d 428 [Crim Ct, N.Y. County 2005] ).
The fact that some of the allegations of the accusatory instrument conflicted with some of the allegations in the supporting deposition, and that there were conflicting allegations within the supporting deposition, is of no moment. The allegations of either or both the accusatory instrument and the supporting deposition provide reasonable cause to believe that defendant committed the charged offenses (see People v. Modica, 187 Misc.2d 635, 636 [Crim Ct, Richmond County 2001] ; see also People v. Barnes, ––– Misc.3d ––––, 2015 N.Y. Slip Op 50034[U] [App Term, 2d, 11th & 13th Jud Dists 2015] ; People v. Ellis, 31 Misc.3d 1213[A], 2011 N.Y. Slip Op 50666[U] [Crim Ct, Kings County 2011], affd 40 Misc.3d 141[A], 2013 N.Y. Slip Op 51506[U] [App Term, 2d, 11th & 13th Jud Dists 2013] ; People v. Salamone, 24 Misc.3d 1213[A], 2009 N.Y. Slip Op 51445[U] [Crim Ct, N.Y. County 2009] ).
Accordingly, the judgments adjudicating defendant a youthful offender are affirmed.
PESCE, P.J., SOLOMON and ELLIOT, JJ., concur.