People v Rosano (Lawrence)

[*1] People v Rosano (Lawrence) 2009 NY Slip Op 52110(U) [25 Misc 3d 129(A)] Decided on October 13, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., NICOLAI and TANENBAUM, JJ
2008-475 N CR.

The People of the State of New York, Respondent,

against

Lawrence Rosano, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (William J. O'Brien, J.), rendered January 28, 2008. The judgment convicted defendant, after a nonjury trial, of criminal trespass in the third degree.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Defendant was charged with criminal trespass in the third degree (Penal Law § 140.10 [a]). The charge stemmed from his alleged trespassing inside the cafeteria of the University Center on the campus of Adelphi University.

In order to be facially sufficient, the accusatory instrument, whether an information or misdemeanor complaint, had to set forth evidentiary factual allegations
providing reasonable cause to believe that defendant committed the offense charged (see CPL 100.15 [3]; 100.40 [1] [a], [b] [applicable to informations]; [4] [a], [b] [applicable to misdemeanor complaints]; People v Dumas, 68 NY2d 729, 731 [1986]). Penal Law § 140.10 (a) provides, in pertinent part:

"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
(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders. . . "

As defendant argues, and the People concede, the accusatory instrument here is facially insufficient, because it contains no evidentiary factual allegations to the effect that the property upon which defendant is alleged to have trespassed — the cafeteria — was "fenced or otherwise enclosed in a manner designed to exclude intruders" (see People v Moore, 5 NY3d 725 [2005]; People v O'Connor, 22 Misc 3d 140[A], 2009 NY Slip Op 50395[U] [App Term, 9th & 10th Jud Dists 2009]). Because this facial insufficiency is a jurisdictional defect (see People v Dumas, 68 NY2d at 731; People v Hoffman, 180 Misc 2d 382, 383 [App Term, 9th & 10th Jud Dists [*2]1999]; see also People v Alejandro, 70 NY2d 133 [1987]), the accusatory instrument must be dismissed (see People v Kerr, 20 Misc 3d 73 [App Term, 9th & 10th Jud Dists 2008]; see also People v Moore, 5 NY3d 725).

In view of our disposition of the matter, we do not address any other issues.

Molia, J.P., Nicolai and Tanenbaum, JJ., concur.
Decision Date: October 13, 2009