Opinion
2008QN015555.
Decided July 31, 2008.
Defendant moves in an omnibus motion for the following relief: (1) Dismissal of the Accusatory Instrument; (2) Suppression of Statement Evidence; (3) Suppression of Identification Evidence; (4) A Sandoval Hearing; (5) Discovery; and (6) Reservation of Rights. The People responded to the motion and request Reciprocal Discovery.Defendant's motion is decided as follows:
Defendant Michael Bazile is charged with Criminal Trespass in the Third Degree (PL § 140.10[e].) The accusatory instrument alleges that the defendant committed the charged offense on or about March 3, 2008, at about 11:40 p.m., inside of 106-56 160th Street, Queens, New York, under the following circumstances:
The accusatory instrument referred to herein is the superceding information dated May 2, 2008, and annexed to the People's Notice of Readiness for Trial.
Deponent states that at the above mentioned date, time and place of occurrence, he observed the defendant Michael Bazile, enter a New York City Housing Authority Building through a propped open door where there were clearly posted signs stating, No Trespass. Deponent further states that he observed the defendant then enter the lobby of the above mentioned building. Deponent states that approximately two minutes later he observed the defendant walking through the lobby and then exit the building through the front door.
Deponent states that he is a legal custodian of the building and that the defendant did not have permission or authority to enter or remain in said building and that defendant is not a tenant of said location (in that the defendant provided a residence address different from the above location) and had no legitimate purpose for being in said location.
FACIAL SUFFICIENCY
Defendant moves to dismiss the count of Criminal Trespass in the Third Degree (PL § 140.10[e]) for facial insufficiency on the ground that the accusatory instrument fails to make a showing that there were conspicuously posted signs. Defendant further seeks dismissal on the ground that the two minutes that defendant is alleged to have been in the lobby is inconsistent with the allegation that defendant unlawfully remained in the premises.
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (CPL §§ 100.15 and 100.40[b]; 70.10; People v Jones , 9 NY3d 259 ; People v Casey, 95 NY2d 354; People v Dumas, 68 NY2d 729.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. (CPL § 100.40[c].) An information which fails to satisfy these requirements is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v Alejandro, 70 NY2d 133; People v Dumas, 68 NY2d 729.)
Where a Court detects reasons for facial insufficiency, it may dismiss the action for those reasons, whether or not defendant raised those issues in his motion papers. ( People v Rosado, 192 Misc 2d 184 [Crim Ct NY County 2002].)
In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense . . ., " the Court should give it "a fair and not overly restrictive or technical reading." ( People v Casey, 95 NY2d at 360.) Thus, what is needed in the pleading is that the factual allegations are sufficiently evidentiary in character such that they tend to support the charges. ( People v Allen, 92 NY2d 378, 385.)
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 where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. (PL § 140.10[e].)
Pursuant to PL § 140.00, "enter or remain unlawfully" is defined, in relevant part, as follows: "A person enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so. . . ." Generally, "a person is licensed or privileged' to enter 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; People v McCargo, 226 AD2d 480, 481 [2d Dept 1996].) When, however, a license or privilege is absent, a person is presumed to have entered or remained unlawfully, and the burden of proving this element is on the People. ( People v Brown , 25 NY2d 374 ; People v. Eastmond, 19 Misc 3d 824 [Crim Ct New York County 2008].)
The element of "enters or remains unlawfully," may be proven circumstantially. ( In re Daniel B, 2 AD3d 440, 441 [2d Dept 2003]; People v Taveras, 2007 NY Slip Op 52067U, 6 [Crim Ct New York County 2007].) Factual allegations which have been found sufficient to establish the element of "knowingly entered or remained unlawfully," include those that allege that a defendant was present in a public housing project building known for drug activity which had conspicuously posted signs prohibiting trespassing and loitering, ( People v Lightfoot, 22 AD2d 865 [2d Dept 2005]; People v Abad, 279 AD2d 358 [1st Dept 2001]; In re Bobby J, 249 AD2d 305, 306 [2d Dept 1998]; In re Darnel B, 248 AD2d 464, 465 [2d Dept 1998]; People v Babarcich, 166 AD2d 655 [2d Dept 1990]) or that allege that a defendant was present in a building that had other indicia that access to the building was restricted to tenants, such as a locked door or an entry controlled by a buzzer system. ( People v Maisonet, 304AD2d 674, 675 [2d Dept 2003].)
In addition, it must also be alleged that following a police officer's observation of a defendant in a building as above described, (1) the officer makes a reasonable inquiry as to the purpose of defendant's presence in the building, ( People v Hollman, 79 NY2d 181, 185; People v De Bour, 40 NY2d 210; People v Lightfoot, supra; People v Babarcich, supra); and (2) in response to the inquiry, the officer determines that defendant is not a resident and lacks a license or privilege for his presence. ( People v Lightfoot, supra; In re Darnel B, 248 AD2d 464, 465 [2d Dept 1998]; People v Babarcich, supra.) The facts that tend to support a lack of a license or privilege include instances where a defendant fails to give a valid reason for his presence, fails to name the tenant by whom he was invited, or provides a reason that proves to be false. ( People v Lightfoot, supra; People v Abad, 279 AD2d 358 [1st Dept 2001]; In re Bobby J, supra; In re Darnel B, supra; People v Babarcich, supra; People v Smith, 139 AD2d 783 [2d Dept 1988]; In re Troy F, 138 AD2d 707 [2d Dept 1998]; People v Rodriguez, 159 AD2d 201 [1st Dept 1990]; People v Quinones, 2002 NY Slip Op 50019 [U] [App Term 1st Dept 2002] lv app den 98 NY2d 680; People v Easton, 16 Misc 3d 1105 [Crim Ct NY County 2007].)
Thus, essential to the element of "enters or remains unlawfully" is an allegation that an inquiry by the police regarding the reason for defendant's presence was made, and it is defendant's response, most often, which reveals information showing that his or her presence was unlawful. ( Id.) For pleading purposes, therefore, the accusatory instrument must contain facts supporting the allegation not only that defendant was not a tenant, but also that defendant lacked license or privilege to be present.( People v Quinones, supra; People v Johnson , 8 Misc 3d 137 [App Term 1st Dept 2005] lv denied 5 NY3d 853; People v Darling, 8 Misc 3d 127(A) [App Term 1st Dept 2005] lv denied 5 NY3d 851; People v Maresca, 2008 NY Slip Op 50663U [App Term 1st Dept 2008]; People v Ruiz, 15 Misc 3d 1135A [Sup Ct Bx County 2007].)
Accordingly, after such inquiry, after a defendant fails to provide a valid right, license or privilege to be present, and so long as there exists indicia that access to the building is restricted to tenants, only then is there reasonable cause to believe that a defendant is committing a trespass. (PL §§ 140.05, 140.10 and 140.00; People v Rodriguez, supra; Matter of Troy F, supra; People v Babarcich, supra.)
Here, the information contains the factual allegations that the building is a New York City Housing Authority Building, that a sign prohibiting trespassing was posted and that defendant was not a tenant as he provided a different address for his residence. There are no facts, however, to support the claim that defendant "had no legitimate purpose for being in said location." Therefore, the element "enters or remains unlawfully" has not been established.
In view of the foregoing, defendant's motion to dismiss the charge of Criminal Trespass in the Third Degree is granted. The Court directs that sealing be stayed for thirty (30) days from the date of this decision. The People have leave to file a timely, facially sufficient information consistent with CPL 30.30 and 170.30. ( People v Nuccio, 78 NY2d 102, 104-105.)
In light of this court's ruling, the remaining branches of defendant's omnibus motion are moot.
This constitutes the decision and order of the court.