Opinion
No. 2011–2847 K CR.
04-03-2015
The PEOPLE of the State of New York, Respondent, v. Anthony WATSON, Appellant.
Opinion
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to criminal trespass in the second degree (Penal Law § 140.15[1] ) in satisfaction of an accusatory instrument that charged, in addition to the foregoing misdemeanor, the violation of trespass (Penal Law § 140.05 ). On appeal, defendant challenges the accusatory instrument's facial sufficiency.
At the outset, we note that defendant's argument concerning the accusatory instrument's facial sufficiency is jurisdictional (see People v. Alejandro, 70 N.Y.2d 133 [1987] ). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v. Dreyden, 15 NY3d 100, 103 [2010] ; People v. Konieczny, 2 NY3d 569, 573 [2004] ) and must be reviewed in spite of his failure to raise it in the Criminal Court (see Alejandro, 70 N.Y.2d 133 ). As defendant, through his counsel, expressly waived his right to be prosecuted by information (cf. People v. Kalin, 12 NY3d 225 [2009] ; People v. Weinberg, 34 N.Y.2d 429 [1974] ), the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (cf. Kalin, 12 NY3d at 228 ; People v. Casey, 95 N.Y.2d 354, 359 [2000] ). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charges (CPL 100.15[3] ) and provides reasonable cause to believe that the defendant committed the offenses charged (CPL 100.40[4][b] ; see People v. Dumas, 68 N.Y.2d 729, 731 [1986] ).
Pursuant to Penal Law § 140.15(1), a person is guilty of criminal trespass in the second degree when he “knowingly enters or remains unlawfully in a dwelling.” A person “enters or remains unlawfully” in a dwelling when “he is not licensed or privileged to do so” (Penal Law § 140.00[5] ). Here, the accusatory instrument alleged that a police officer had observed defendant inside the hallway of the first floor of a private residential building, which is enrolled in “FTAP” (i.e., a “Trespass Affidavit Program”) and which dwelling is posted with “no trespassing” signs which state that only tenants and their guests are permitted therein. The accusatory instrument and supporting deposition further alleged that when defendant was asked by the officer whether he was a tenant in the building or was an invited guest of someone in the building, defendant merely responded that “he went t[o] buy drugs but no one was there.” The officer further asserted that he was a legal custodian of the building pursuant to “FTAP,” and that he had ascertained, by checking the tenant rolls, that defendant was not a tenant in the building. Thus, the officer determined that defendant did not have permission or authority to enter and remain in the area of the premises where he was found.
The foregoing factual allegations support the reasonable inference that defendant was not licensed or privileged to be in the dwelling (see People v. Maisonet, 304 A.D.2d 674 [2003] [“The hallway of an apartment building may constitute a dwelling,' as defined by Penal Law § 140.00(3), if it is inaccessible to the public.”] ). The accusatory instrument alleged, based on the officer's examination of the tenant rolls, that defendant was not a tenant. Although the “no trespassing” sign stated that only tenants and their guests were permitted, it was unnecessary for the accusatory instrument to further “allege facts negating the possibility that the defendant was an invited guest of a ... tenant. Such a requirement would compel the People to obtain a supporting deposition from each of the tenants confirming that defendant had not been invited into the building. The People would have to go to intolerable lengths to comply with such mandates” (People v. Barnes, ––– Misc.3d ––––, 2015 N.Y. Slip Op 50034[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015] [internal quotations marks and citations omitted] ). As a result, the accusatory instrument sufficiently alleged that defendant had knowingly entered or remained unlawfully in the dwelling (see generally People v. Jackson, 18 NY3d 738, 747 [2012] ; People v. Barksdale, 110 AD3d 498 [2013] ; People v. Messina, 32 Misc.3d 318 [Crim Ct, Kings County 2011] ; People v. Scott, 8 Misc.3d 428 [Crim Ct, N.Y. County 2005] ). Therefore, “given a fair and not overly restrictive or technical reading” (Casey, 95 N.Y.2d at 360 ), the accusatory instrument was jurisdictionally sufficient to allege the offense of criminal trespass in the second degree, as it provided defendant with sufficient notice to prepare a defense to the charge and was adequately detailed so as to prevent defendant from being tried twice for the same offense (see Casey, 95 N.Y.2d at 360 ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., SOLOMON and ELLIOT, JJ., concur.