Opinion
2007-449 K CR.
Decided on November 20, 2008.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William McGuire, J.), rendered March 7, 2007. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the third degree and resisting arrest.
Judgment of conviction affirmed.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
Defendant's contention, that the information with regard to the charge of criminal trespass in the third degree (Penal Law § 140.10 [e]) is defective, lacks merit. The procedural requirements for the factual portion of an information are that it state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15; see CPL 100.40 [a]) and, that the "allegations of the factual part . . . together with those of any supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense charged . . ." (CPL 100.40 [1[ [b]; see People v Casey, 95 NY2d 354, 360).
Here, the accusatory instrument specifically alleged that the building was a public housing project; defendant was present in the building and was observed leaving the building; defendant's presence in the building was in violation of posted rules and regulations, and defendant did not have permission to enter or remain in the building.
"So 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, they should be given a fair and not overly restrictive or technical reading" ( see People v Baumann Sons Buses, Inc., 6 NY3d 404, 408, quoting People v Casey, 95 NY2d 354, 360, supra). We are of the opinion that these facts, as specifically set forth in the information, provided defendant with sufficient notice to prepare a defense to the charge of criminal trespass in the third degree.
As to defendant's challenges to the sufficiency of the evidence with regard to the convictions for criminal trespass in the third degree (Penal Law § 140.10 [e]) and resisting arrest (Penal Law § 205.30), we are of the opinion that the evidence, when viewed in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620), was legally sufficient to establish defendant's guilt of said charges. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15; People v Danielson, 9 NY3d 342). It is well settled that the credibility of witnesses is a question of fact, and the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses ( see People v Romero, 7 NY3d 633). The determination of the trier of fact should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see People v Garafolo, 44 AD2d 86, 88). In the instant case, the findings of guilt were supported by consistent and credible testimony.
We find defendant's other contentions raised on appeal to be without merit.
Accordingly, the judgment of conviction is affirmed.
Golia, J.P., and Steinhardt, J., concur.
Rios, J., dissents in part and concurs in part and votes to modify the judgment by vacating the conviction of criminal trespass in the third degree and by dismissing said count of the accusatory instrument.
I am in agreement with the majority in its affirmance of so much of the judgment as convicted defendant of resisting arrest (Penal Law § 205.30). However, with respect to the conviction of criminal trespass in the third degree (Penal Law § 140.10 [e]), insofar as the information herein charges said offense, it failed to indicate what the posted rules and regulations were in the public housing project. Moreover, the information did not describe the conspicuous posting or even indicate that the posting was, in fact, conspicuous. Accordingly, the allegations contained in the information were insufficient to establish every element of the offense ( see CPL 100.15, 100.40) of criminal trespass in the third degree and were inadequate to permit defendant to prepare a defense thereto. In view of the foregoing, I am of the opinion that the conviction of criminal trespass in the third degree should be vacated and said count of the accusatory instrument dismissed.