Opinion
NA 10366/07.
Decided July 18, 2007.
Honorable Kathleen Rice, District Attorney, Mineola, NY.
Daniel Schneider, Esq., Legal Aid Society of Nassau County, Criminal Division, One Helen Keller Way, Hempstead, NY.
Defendant moves for an Order: (I) dismissing the accusatory instrument filed herein, pursuant to CPL §§ 170.30, 170.35, 100.15 and 100.40 because it is facially insufficient and defective; (II) suppressing the use as evidence at trial any statements of the defendant, or in the alternative directing a suppression hearing on the issue of voluntariness of his statements; (III) full disclosure by the People of all prior bad or immoral acts by the defendant, as well as prior criminal convictions, if any, that may be used by the District Attorney upon cross-examination of the defendant at trial; and a hearing to determine the scope of the prosecution's cross-examination of the defendant (a Sandoval hearing); (IV) directing delivery to the Defendant of all evidence favorable to him under authority of Brady v. Maryland; (V) directing the People to provide defendant with the names, addresses and telephone numbers of potential witnesses to the incident which forms the basis of the charges against defendant; (VI) reserving defendant's right to make all further motions predicated upon the answer to the instant motion. The People oppose the defendant's motion, but consent to a Huntley/Voluntariness hearing and defendant's request for a Sandoval hearing.
Defendant's omnibus motion is determined as follows:
The defendant is charged by way of misdemeanor complaints with violating PL § 240.21 (Disruption, or Disturbance of Religious Service), a class A misdemeanor, and PL § 140.10(a) (Criminal Trespass in the Third Degree), a class B misdemeanor, arising out of an incident that occurred on or about April 27, 2007 in The Holy Redeemer Church located in Freeport, Nassau County, New York.
(I) That portion of defendant's motion for an order dismissing the accusatory instrument charging a violation of PL § 240.21is denied. That portion of defendant's motion for an order dismissing the accusatory instrument charging a violation of PL § 140.10(a) is granted.
CPL § 100.15 provides that every accusatory instrument must contain two separate parts: (1) an accusatory portion designating the offense charged, and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. The facts set forth must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument ( People v. Dumas, 68 NY2d 729; People v. Strafer, 10 Misc 3d 1072 [A]). CPL § 100.40 provides that a misdemeanor information is facially sufficient if the non-hearsay facts stated in the information, together with any supporting depositions, establish: (1) each and every element of the offense charged, and (2) the defendant's commission of said crime. When both these requirements are met, the information states a prima facie case and is sufficient ( People v. Alejandro, 70 NY2d 133).
On a motion to dismiss for facial insufficiency, the Court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt ( People v. Jennings, 69 NY2d 103). In assessing the facial sufficiency of an accusatory instrument, the Court must view the facts in the light most favorable to the People ( People v. Mellish, 4 Misc 3d 1013 (A); People v. Gibble, 2 Misc 3d 510). The allegations only need make out a prima facie case and need not establish the defendant's guilt beyond a reasonable doubt ( People v. Henderson 92 NY2d 677).
Penal Law § 240.21 states that:A person is guilty of aggravated disorderly conduct, who makes unreasonable noise or disturbance while at a lawfully assembled religious service or within one hundred feet thereof, with intent to cause annoyance or alarm or recklessly creating a risk thereof.
On a motion to dismiss an accusatory instrument, the Court must confine its analysis to the allegations contained in the complaint and in any depositions filed in support of it ( see, People v. Pelt, 157 Misc 2d 90, 92, 569 NYS2d 301 [Crim. Ct. Kings Co. 1933]; People v. Fink, NYLJ, May 22, 1992 at 23, col 4 [Crim. Ct. NY Co.]). The factual part of the misdemeanor complaint filed herein reads as follows:
TO WIT: The Deponent: Donald Ayers is employed as a The Maintenance Supervisor at The Holy Redeemer Church located at 37 South Ocean Avenue in Freeport, New York. Ayers reports that on 7/27/07 at approximately 0700 hours, he observed the defendant Terrence J. Martinez (1/26/56) sleeping in the church pews during the service. Ayers requested that Martinez leave the church. Ayers recognized Martinez as a subject who has been asked on numerous occasions not to enter the premises. Martinez refused to leave. Martinez screamed and argued with Ayers. Martinez's actions disrupted the church service and parishioners. Martinez emptied a chalice of holy water onto the sidewalk outside of the church. The defendant's actions disrupted the church service and caused it's parishioners to be alarmed. The defendant did walk out of the place of occurrence, and attempted to reenter through another door in the presence of police.
Supporting Deposition of DONALD AYERS annexed hereto and made a part hereof. This complaint is based on personal knowledge, the source being, DONALD AYERS.
In the Court's view, applying the above principles to the instant matter, the accusatory instrument makes out a prima facie case; the information filed herein is sufficient.
With regard to the misdemeanor complaint accusing defendant of a violation of PL § 140.10(a), said section states:
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 (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders;
The factual part of the misdemeanor complaint filed herein reads:
TO WIT: Your deponent was advised by the complainant Donald Ayers who is employed as The Maintenance Supervisor At The Holy Redeemer Church located at 37 South Ocean Avenue in Freeport New York. On 4/27/07 at approximately 0700 hours, Ayers observed the defendant Terrence J. Martinez (1/26/56) sleeping on pews in the place of occurrence. Ayers recognized the defendant Martinez as a subject who he has asked on several occasions not to enter or remain in the premises. Martinez refused request by Martinez, and police to leave premise. Martinez walked out of premise then attempted to reenter through another door in the presence of police.
Defendant argues that "to be guilty of the subsection charged, the building or real property in question must be fenced or otherwise enclosed in a manner designed to exclude intruders'" (¶ 26 — affirmation of Daniel Schneider). The People oppose defendant's argument claiming that "A person will be deemed to enter or remain unlawfully on property when he or she does so without license or privilege." The People cite PL § 140.00(5), and People v. Leonard, 62 NY2d 404, 477 NYS2d 111 (1984). However, the Court does not find these citations applicable to this case. The language "without license or privilege" does not appear in PL § 140.10, but rather in PL § 140.05.
A reading of PL § 140.10(a) is very clear the building or real property must be fenced or otherwise enclosed in a manner designed to exclude intruders. There are additional subsections [(b) through (g)] which deal with other situations rising to the level of criminal trespass, none of which is cited or is applicable against defendant in this matter. The present structure of the statute compels the conclusion that the fencing/enclosure requirement phrase applies to "building" as well as real property, and every court that has addressed the issue in a reported opinion so construes it ( see In re Lawrence K., 8 AD3d 1078, 778 NYS2d 393, 393-94 (4th Dept 2004); People v. Santos, 700 NYS2d at 383-85; People v. Warren, 173 Misc 2d 864, 662 NYS2d 372, 373-74 (Monroe Co. Ct. 1997), Davis v. City of New York, 373 F.Supp 2d 322 (SDNY 2005).
In the Court's view, applying the above principles to the instant matter, the accusatory instrument does not make out a prima facie case; the information filed herein is insufficient, and is hereby dismissed.
(II) That portion of defendant's motion seeking a hearing to determine the voluntariness and admissibility of any statements by defendant that the People intend on using at trial (CPL § 710.60) is granted. Said hearing will be held on the eve of trial.
(III) Defendant's motion for an order directing the People to disclose the defendant's prior uncharged criminal, vicious or immoral conduct as well as criminal convictions of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant should he testify at trial ( People v. Sandoval, 34 NY2d 371, 357 NYS2d 849) is granted on consent. Said hearing shall be held on the eve of trial. The trial judge will make an advance ruling as to the permissible scope of the defendant's cross-examination concerning defendant's alleged prior commission of specific criminal, vicious or immoral acts.
(IV) The Court is satisfied that the People are aware of their continuing duty under Brady v. Maryland, 373 US 83, and that the People will provide the defendant with any exculpatory material, when and if it comes into their possession.
(V) Defendant's request for a witness list, comprising the names, addresses and telephone numbers of potential witnesses is denied at this time. The People will notify the defendant of such information immediately prior to trial.
Lastly, that branch of defendant's motion, denominated a "reservation clause," for leave to file additional pretrial motions is denied without prejudice to renew. Such a request is both premature and in contravention of the requirements set forth in CPL § 255.20(3). A pretrial motion made after the forty-five day period set forth in CPL § 255.20 can be entertained either in the interest of justice or for good cause shown. This branch of the motion does nothing more than speculate that future motions may be necessary. Absent grounds which satisfy the above criteria, defendant cannot reserve a right which presently does not exist.
Defendant's omnibus motion is denied in all other respects.
So Ordered.