Opinion
2014BX052095
03-27-2015
The People of the State of New York, v. Cesar Villa, Defendant.
The People Robert T. Johnson, District Attorney, Bronx County, by Ketaki Chakrabarti, Assistant District Attorney Defendant Law Office of John O'Connell & Associates, P.C. by John O'Connell
The People
Robert T. Johnson, District Attorney, Bronx County, by Ketaki Chakrabarti, Assistant District Attorney
Defendant
Law Office of John O'Connell & Associates, P.C. by John O'Connell
Armando Montano, J.
Defendant is charged with Criminal Trespass in the Second Degree (PL § 140.15(1)), Criminal Trespass in the Third Degree (PL § 140.10(a)), and Trespass (PL § 140.05).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing all evidence obtained as a result of the unlawful seizure of defendant (Dunaway); 3) suppressing any and all statements made by and/or elicited from defendant (Huntley); 4) precluding the offering of any additional statements and/or identification testimony for which defendant has not received notice pursuant to CPL § 710.30; 5) compelling the People to provide defendant with a list of any crimes, charged or uncharged, and any vicious or immoral acts which they intend to use at trial and requiring a hearing to determine the admissibility of any such testimony (Ventimiglia); and 6) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument read as follows:
Deponent states that, [on August 1, 2014 at approximately 5:52 p.m. at inside of 2356 Lorillard Place, County of Bronx, State of New York], a Clean Halls apartment building, he observed said location to have conspicuously posted signs indicating NO Trespassing, this building is part of operation clean halls, locked entrance door(s), tenants, and invited guest only and specifically on the roof landing a sign indicating NO TRESPASSING.
Deponent further states that he approached defendant and asked defendant do you live here and defendant stated in sum and substance NO. Deponent further states that he asked defendant if he was visiting anyone in the building, defendant stated in sum and substance NO. Deponent further asked the defendant if he had any business being in the building, the defendant stated in sum and substance NO.
Deponent further states that he has reviewed a notarized Clean Halls Affidavit signed by Christopher Hanon, the owner/managing agent of the apartment building located at 2356 Lorillard Place, which is on file with the New York City Police Department and said affidavit authorizes the New York City Police Department to arrest individuals who are not tenants of the location or invitees.
Deponent further states that defendant was unable to provide the name of any tenant, an apartment number, or a legitimate purpose for his presence inside said location. Deponent further states that defendant's residence address is 2366 Lorillard Place, Bronx, New York.
Deponent further states that he is a New York City Police Officer and as such is the lawful custodian of said location and the defendant did not have permission or authority to enter or remain inside the above location, which is a dwelling.
Facial Sufficiency
Defendant argues that the accusatory instrument must be dismissed as facially insufficient because the Clean Halls Affidavit, being used to support an element of the offenses charged, is nine years outdated.
In opposition, the People first note that the Clean Halls Affidavit indicates that the authority granted to the local police precinct to be in effect for perpetuity. The People argue that the information provides adequately detailed factual allegations to support the trespass charges. Specifically, the People aver that they have alleged sufficient facts which provide reasonable cause to believe that defendant knowingly entered and remained unlawfully in the apartment building located at 2356 Lorillard Place, Bronx, New York ("the subject premises").
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15(3); People v. Dumas, 68 NY2d 729 (1986)) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40(1)(b)(c)). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "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. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986).
A person is guilty of Criminal Trespass in the Second Degree when "he or she knowingly enters or remains unlawfully in a dwelling ." PL § 140.15(1). 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 which is fenced or otherwise enclosed in a manner designed to exclude intruders." PL § 140.10(a). A person is guilty of Trespass when "he knowingly enters or remains unlawfully in or upon premises." PL § 140.05.
The term "dwelling" is defined as a "building which is usually occupied by a person lodging therein at night." PL § 140.00(3).
All three of the offenses charged include the essential element of a defendant knowingly entering or remaining unlawfully upon the type of property specified in the particular charge. "A person enters or remains unlawfully' in or upon premises when he is not licensed or privilege to do so." PL § 140.00(5). "In general, a person is licensed or privileged to enter a private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent." People v. Graves, 76 NY2d 16, 20 (1990). Where such license or privilege is absent, a person is generally presumed to have entered or remained unlawfully. See, People v. Brown, 25 NY2d 374 (1975). To support these charges, the People must assert sufficient non-hearsay allegations supporting that the defendant was knowingly present where he was not welcome. See, People v. Outlar, 177 Misc 2d 620 (Crim Ct, NY County 1998).
"A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." PL § 15.05(2).
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Defendant essentially argues that the staleness of the Clean Halls Affidavit renders the accusatory instrument facially insufficient. Notwithstanding the fact that the Clean Halls Affidavit provides that the "undersigned bind[s] the owner from [March 20, 2006] into perpetuity," this Court finds defendant's arguments to be unpersuasive and without merit. For purposes of facial sufficiency, the Clean Halls Affidavit is immaterial since it neither amplifies the pleadings, enhances the factual allegations, nor provides a missing element of the offenses charged. See, People v. Eastmond, 19 Misc 3d 824 (Crim Ct, Bronx County 2008); People v. Tavares, 17 Misc 3d 1119(A) (Crim Ct, NY County 2007). The duly notarized Clean Halls Affidavit, executed by Christopher Hanon, identifies the subject premises as a dwelling where only tenants, their family members, and invited guests are licensed and privileged to enter or remain. The Clean Halls Affidavit simply demonstrates that the local police precinct was asked by the owner/managing agent of the subject premises to conduct patrols in the common areas of the building due to drug-related activity.
This Court finds that the accusatory instrument is facially sufficient as the factual portion contains allegations which provide reasonable cause to believe that defendant entered or remained unlawfully in a dwelling. First, defendant was observed on the roof landing of a building with conspicuously posted "No trespassing" signs. Second, the building was identified by the arresting officer as a dwelling. Third, defendant was observed on the roof landing with a conspicuously posted "No trespassing" sign. Finally, defendant admitted to the arresting officer that he resided elsewhere, he was not visiting anyone in the building, and he had no business being in the building. The fact that defendant was not licensed or privileged to enter or remain as a tenant or as a guest of a tenant is sufficiently established by his own admissions. See, People v. Darling, 8 Misc 3d 127(A) (App Term, 1st Dept. 2005); People v. Quinones, 2002 NY Slip Op 51292[U] (App Term, 1st Dept. 2002); People v. Heller, 180 Misc 2d 160 (Crim Ct, NY County 1998). As the elements of Criminal Trespass in the Third Degree and Trespass are wholly included in the elements of Criminal Trespass in the Second Degree, an accusatory instrument that is facially sufficient for Criminal Trespass in the Second Degree is facially sufficient for the lesser included offenses of Criminal Trespass in the Third Degree and Trespass.
Although the accusatory instrument is facially sufficient, this Court has concerns regarding the language of the Clean Halls Affidavit which purportedly binds the owner of the subject premises "for perpetuity" to continue participating in the Operation Clean Halls program. This Court's initial concern pertains to a situation where had the subject premises been sold and ownership transferred after the execution of the affidavit, the continued legal viability of the affidavit is in this Court's opinion in doubt and this Court would demand that the new owner and/or managing agent either renew or ratify the affidavit for police authorization to continue. It is unreasonable for an affidavit to authorize the local police precinct to conduct patrols at the subject premises without any time limitations. Nor does the authorization provided to the local police precinct run with the land. Query: whether the affidavit was even filed with the Office of the City Register as easements and restrictive covenants are required to be filed in order to provide constructive notice of them. This Court's other concern is that although the owner and/or managing agent of the subject premises is required to file a current tenant list at the time the building is first enrolled in the Operation Clean Halls program, it is unclear whether the owner and/or managing agent continued to file updated tenant lists with the local police precinct. Moreover, it is not known if there is any such requirement to do so periodically. If the owner and/or managing agent failed to apprise the local police precinct of the names of new tenants, then it is conceivable that a person who is visiting a new tenant, not included on the original tenant list, could be charged with trespassing when he or she is actually visiting a bona fide tenant who commenced occupancy after the filing of the initial tenant list. This Court's concern has to do with arresting individuals when they would actually be innocent of any wrongdoing.
Suppression of Evidence
A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A court may summarily deny a motion to suppress, if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). Even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In People v. Mendoza, 82 NY2d 415, 429-430 (1993), the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.
Motion to Suppress Evidence Due to an Unlawful Arrest
Defendant asserts that any and all evidence obtained occurred as a result of an illegal arrest and should be suppressed. The People deny any knowledge of any physical evidence seized from defendant. This Court notes that defendant has failed to identify what physical evidence, if any, was recovered. Therefore, defendant's motion to suppress evidence due to an unlawful arrest, or, in the alternative, a Mapp/Dunaway hearing is denied.
Motion to Suppress Statement Evidence
Defendant argues that any and all statements allegedly made by and/or elicited from him were obtained illegally because 1) the statement was involuntary and 2) the statement was made without a knowing and voluntary waiver of his constitutional rights. Moreover, as the initial arrest of defendant was illegal, i.e., without probable cause, defendant argues that the statement must also be suppressed as the tainted fruit of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing.
The People assert that statement notice was properly served at defendant's arraignment pursuant to CPL § 710.30(1)(a). The People consent to defendant's request for a Huntley hearing. However, the People oppose defendant's request for a Dunaway hearing as this branch of the motion fails to contain sworn allegations of fact in support of suppression. The People further contend that the officer had probable cause to arrest defendant. The officer observed defendant standing on the roof landing of a Clean Halls building with a conspicuously posted "No trespassing" sign. This observation gave the officer the right to approach defendant and inquire as to his presence at the subject premises. Once defendant admitted that he did not reside at the subject premises and he was not visiting anyone in the building, the officer had probable cause to believe that defendant was committing Criminal Trespass.
As stated above, summary denial of suppression motion is disfavored. In the interest of judicial economy and in light of the fact that the branch of defendant's motion seeking a Huntley hearing "is grounded in the same set of facts and involve[es] the same [ ] witnesses" (Mendoza, 82 NY.2d at 429), defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted.
Motion to Preclude Statement and Identification Evidence
Defendant's motion to preclude the introduction of unnoticed statements and identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Sandoval/Molineaux/Ventimiglia
Defendant requests and the People consent to disclosure of defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371 (1974), People v. Molineaux, 168 NY 265 (1901), and People v. Ventimiglia, 52 NY2d 350 (1981). This hearing shall be held immediately before the commencement of trial.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Defendant's motion to suppress evidence due to an unlawful arrest, or, in the alternative, a Mapp/Dunaway hearing is denied. Defendant's motion for a Huntley/Dunaway hearing is granted. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the Trial Judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this Court.
Dated:March 27, 2015
Bronx, New York
_______________________________
Hon. Armando Montano