Opinion
No. 2013–129 Q CR.
09-11-2015
The PEOPLE of the State of New York, Respondent, v. Joseph MOORE, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gene R. Lopez, J.), rendered December 3, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal trespass in the third degree.
ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
On December 3, 2012, defendant was charged in a misdemeanor complaint with criminal trespass in the third degree (Penal Law § 140.10) and unlawful possession of marihuana (Penal Law § 221.05). The accusatory instrument alleged that, on December 3, 2012 at about 12:25 a.m., defendant had been observed in the courtyard of a New York City Housing Authority building where there were “clearly posted signs” stating “no trespass” and “anyone who remains unlawfully upon these premises will be prosecuted,” and that defendant had admitted to the officer that he did not reside in the premises, had given a different address as his residence, and could provide no legitimate reason for his presence. A search of his person produced nine ziplock bags of marihuana from the lining of his jacket.
Later that day, defendant appeared before the Criminal Court (Gene R. Lopez, J.), with counsel, and pleaded guilty to criminal trespass in the third degree in satisfaction of the accusatory instrument. In the course of the colloquy, the only reference to the waiver of trial-related rights is defendant's affirmative response to the court's query, “By your guilty plea, you give up the right to trial before a Judge as well, do you understand that?” Defendant now seeks to dismiss the underlying accusatory instrument as facially insufficient to allege trespass in the third degree, or, in the alternative, to vacate his plea on the ground that his purported waiver of trial-related rights (see Boykin v. Alabama, 395 U.S. 238 1969 ) was insufficient to demonstrate that his plea was knowing, intelligent and voluntary (see People v. Tyrell, 22 NY3d 359 2013 ). The People respond that the accusatory instrument was not jurisdictionally defective and that, while the Tyrell claim is preserved for appellate review, defendant's guilty plea was properly accepted.
We find the accusatory instrument facially sufficient to allege the elements of trespass in the third degree. Because defendant did not waive the right to prosecution by information, the instrument's facial sufficiency is reviewed by the standards applicable to an information (see CPL 100.101; 170.651, 3; People v. Kalin, 12 NY3d 225, 228 2009; People v. Weinberg, 34 N.Y.2d 429, 431 1974; People v. Chan, 36 Misc.3d 44, 46 [App Term, 2d, 11th & 13th Jud Dists 2012] ). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and the defendant's commission thereof (see CPL 100.153; 100.401; People v. Henderson, 92 N.Y.2d 677, 679 1999; People v. Alejandro, 70 N.Y.2d 133, 136–137 1987 ).
As a matter of “common sense and reasonable pleading” (People v. Davis, 13 NY3d 17, 31 2009; see also People v. Casey, 95 N.Y.2d 354, 360 2000 [accusatory instruments should be afforded “a fair and not overly restrictive or technical reading”] ), a defendant's knowledge of his or her unlawful presence may be inferred from the existence of “conspicuously posted rules or regulations governing entry and use” of a premises and an inability to provide a legitimate reason for that presence (see People v. Hill, 72 AD3d 702, 705 2010; People v. Lightfoot, 22 AD3d 865, 866 2005; People v. Babarcich, 166 A.D.2d 655, 656 1990; People v. Barnes, 40 Misc.3d 133[A], 2013 N.Y. Slip Op 51249[U] [App Term, 1st Dept 2013] ). The information herein served its fundamental purpose, to afford defendant his due process right to a fair opportunity to prepare a defense and to avoid being charged twice with the same offense (Casey, 95 N.Y.2d at 360).
However, defendant's guilty plea fails to meet the minimum constitutional standards set forth in Boykin v. Alabama (395 U.S. 238; see People v. Tyrell, 22 NY3d at 364). While defendant acknowledged at his plea that he was waiving a “trial before a Judge, as well,” which may be interpreted as impliedly waiving a trial by jury, this lone statement is insufficient to completely satisfy the Tyrell requirements (Tyrell, 22 NY3d at 365 [a defendant “must waive certain constitutional rights—the privilege against self-incrimination, and the rights to a jury trial and to be confronted by witnesses” to establish that the plea was knowingly, voluntarily and intelligently entered]; see People v. Vences, 125 AD3d 1050, 1051 2015; cf. People v. Mendez, 46 Misc.3d 136[A], 2014 N.Y. Slip Op 51890[U] [App Term, 1st Dept 2014] ). Although the Court of Appeals has “steered clear of a uniform mandatory catechism of pleading defendants in favor of broad discretions controlled by flexible standards' “ (Tyrell, 22 NY3d at 365, quoting People v. Alexander, 19 NY3d 203, 219 2012 ), here, there is not even an indication in the record that “defendant consulted with his attorney about the constitutional consequences of a guilty plea” (Tyrell, 22 NY3d at 365; cf. People v. Thompson, 46 Misc.3d 136[A], 2014 N.Y. Slip Op 51892 [U], *2 [App Term, 1st Dept 2014] ).
Furthermore, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument, since defendant has completed his sentence and no penological purpose would be served by reinstating the proceedings (see People v. Green, 43 Misc.3d 141[A], 2014 N.Y. Slip Op 50815[U] [App Term, 9th & 10th Jud Dists 2014]; People v. Domin, 42 Misc.3d 149[A], 2014 N.Y. Slip Op 50403[U] [App Term, 9th & 10th Jud Dists 2014]; People v. Facey, 30 Misc.3d 138[A], 2011 N.Y. Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the judgment is reversed and the accusatory instrument is dismissed.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.