People v Olmo

[*1] People v Olmo 2003 NY Slip Op 51721(U) Decided on November 20, 2003 Criminal Court Of The City Of New York, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2003
Criminal Court Of The City Of New York, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

VICTOR OLMO et. al, Defendants.



Docket No.:2002BX039687

SETH L. MARVIN, J.

Edited for Publication

AMENDED

These applications involve several recurring issues in the prosecution of cases charging criminal trespass in the second degree pursuant to Penal Law §140.15.

All of the defendants have filed motions to dismiss for facial insufficiency.

I.The Statute

"A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling." [FN1] Penal Law §140.15. "A person 'enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so."

Penal Law §140.00 (5).[FN2] "'Dwelling' means a building which is usually occupied by a person lodging therein at night." Penal Law §140.00 (3).

There are two elements to this crime: (i) that defendant unlawfully entered or remained in a dwelling and (ii) that defendant did so knowingly. CJI2d [NY] Penal Law §140.15.



II. The Standard for Facial Sufficiency

"The factual part of [an information or a misdemeanor complaint] must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL §100.15(3). Assuming compliance with CPL §100.15, an information is sufficient on its face when:

(b) The allegations of the factual part of the information, together with

those of any supporting depositions...provide reasonable cause to

believe that the defendant committed the offense charged in the [*2]

accusatory part of the information; and (c) Non-hearsay allegations of the factual part of the information and/or of

any supporting depositions establish, if true, every element of the offense

charged and the defendant's commission thereof.

CPL §100.40(1)

The pleading requirements for Penal Law 140.15 prosecution were recently relaxed by the Appellate Term, First Department, in People v. Quinones, 2002 WL 432917 (N.Y.Sup. App.Term), lv. denied, 98 N.Y.2d 680 (2002). In Quinones, the accusatory instrument was reinstated since the pleadings:

...sufficiently set forth the factual basis for the charge...by alleging,

inter alia, that defendant was observed inside the lobby of a public

housing apartment building equipped with a locked entrance door

and 'buzzer system'; that defendant admitted that he did not live

in the building; and that defendant...was unable to identify the

friend's surname or apartment number.

The Appellate Term, First Department, concluded that "[t]hese allegations were sufficient, for pleading purposes, to establish that the lobby area was part of the dwelling and was not open to the general public...and that defendant knowingly entered or remained unlawfully therein[.]" 2002 WL 432917. This conclusion was consistent with People v. Holder, 2001 WL 1725929 (N.Y.Sup.App.Term), lv. denied, 97 N.Y.2d 705 (2002), where an accusatory instrument charging third-degree criminal trespass was reinstated as the Appellate Term concluded that "...the factual allegations should be given a fair and not overly restrictive reading where...they '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[.]'" [quoting People v. Casey, 95 N.Y.2d 354, 360 (2000)].

III.The Accusatory Instruments

A. Victor Olmo

The accusatory instrument consists of a Complaint, a Supporting Deposition and a Clean Halls Affidavit. The Complaint is dated July 26, 2002, and is signed by Police Officer Burica. It alleges that at a specified time and location earlier that day, Olmo was observed

...in a dwelling, namely an apartment building, specifically defendant

was in the lobby and...said dwelling...ha[d] [a] posted sign stating no

trespassing and...said location also ha[d] locked entrance door(s) and

buzzer system. [Olmo] did not have permission or authority to be inside the...dwelling based upon ...an owner/managing agent's affidavit signed by Jim Wickline that only tenants and their invited guests are permitted inside of the above dwelling. [Olmo] is not a tenant of the above location in that [he] provided the...residence address [*3]1551 Selwyn Avenue Bronx, NY and...stated he did not live at the above dwelling and did not know anyone in the building and...stated [that he was at the premises] to see someone about an apartment and this was disproved in that there is no rental office in this building, there's a large sign in front...with an address and phone number of agent. Defendant could not give a name or an apartment number of the person he spoke with.

At arraignment on July 27, 2002, the People stated, "[a]t this time, People

showing to defense counsel and filing with the court a clean halls affidavit as well as a

supporting deposition. It's People's position this is now an information. People are stating ready." (O. 2). Defense counsel noted that "[u]nfortunately the District Attorney's Office never gives us a copy of the Supporting Deposition so we have to get somebody to make copies of all of those." (O. 3-4).

The Clean Halls Affidavit [FN3] is dated February 5, 2002 (over three months prior to the incident\arrest), and is signed by Mr. Wickline, as "...owner, managing agent or other person in authority relating to supervision of the...'premises'...." It states, in part, that:

WHEREAS in recent months the....premises ha[ve] become occupied by

persons with no permission or legitimate purpose to frequent the same;

and

WHEREAS the undersigned is fearful of and suspects that narcotics trade

or other illegal activity has been occurring on or about the...premises and

that said premises has become a site for such activity; now

THEREFORE IT IS AGREED THAT, the undersigned...hereby grants full

permission and authority to the New York City Police Department ["NYPD"],

its employees and agents, to enter...the...premises at... all hours

of the day for purposes of arresting those individuals found

thereon who upon the [NYPD's] determination are deemed to

have no legitimate purpose...and are trespassing. The undersigned

acknowledges that for purposes of identifying those individuals

having legitimate purposes, a current tenant roster has been and

will continue to be provided to the [NYPD]. Additionally, the [*4]

undersigned acknowledges that the policy of arrest as set forth

herein has been adequately communicated to all tenants and

management personnel.

The Supporting Deposition is signed by Police Officer John Bases, who was the informant for the Complaint.

On October 30, 2002, defense counsel objected to the People's statement of readiness ("...I again object to that. The clean halls affidavit was...written in February; this arrest occurred in July. It's my position this is not even an information.") (O1. 2).

On December 30, 2002, the defense filed an omnibus motion seeking dismissal of the accusatory instrument as facially insufficient or alternatively, a ruling that the accusatory instrument has not been converted to an Information. Defense counsel claimed that "[t]he defense has not received a copy of the supporting affidavits from Police Officer Bases and JimWickline, the purported managing agent..." . On January 15, 2003, the People moved, pursuant to CPL §100.45(3), to reduce the charge to PL §140.10(e).[FN4] The People argued that "...the facts in the accusatory instrument satisfy... [§]140.10(e)...."

On the conversion issue, the People alleged that:

...the accusatory instrument was deemed an information with no

objection from the defendant. Furthermore...a sworn statement is

not needed from...Wickline. The People have a sworn statement

from the arresting officer who observed the illegal act being committed.

Although[] the owner's/managing agent affidavit predates the arrest, the

only purpose that document[] serves is to confirm that said location is

a clean halls location and that the [NYPD] has permission and authority

to enter said location at any time for the purpose of identifying those

individuals having legitimate purposes...Wickline does not need to have

personal knowledge of the illegal act so long as a New York City Police

[Officer], whom has been given permission and authority to be at said

location, has personal knowledge of the illegal act.

Defense counsel objected to the proposed reduction, arguing that there was no

allegation in the Complaint that the premises were within the jurisdiction and control of [*5]

the New York City Housing Authority.

B. Kenneth Liner

The accusatory instrument consists of a Complaint, Supporting Deposition and a Bronx District Attorney New York City Police Department Clean Halls Affidavit. The Complaint (dated December 19, 2002) follows largely the Complaint in Olmo with several exceptions. The no trespassing sign stated that "...anyone who remains unlawfully upon these premises will be prosecuted..." and the building's entrance was fenced and gated.

The Complaint concluded that:

...defendant did not have permission or authority to be in the dwelling

based upon...an owner/managing agent's affidavit signed by John Cirillo

that only tenants and their invited guests are permitted inside of the above

dwelling. Defendant is not a tenant of the above location in that [he]

provided the...residence address 1031 Manor Ave, BX, NY and...stated...

he...was there to visit PEACHES in apt. 2A.

During a bail review in Part F on December 20, 2002, Judge Adler noted that, "Clearly, the sworn portion of the complaint would not sustain a motion to dismiss."

(L 2). On December 24, 2002, the People stated that they were "...filing a supporting deposition and the clean halls affidavit. I will show defense and the People are filing them with the Court." (L1. 2). The Clean Halls Affidavit is dated August 25, 2002 (almost four months prior to the incident/arrest). While the affidavit is in the same format as the affidavit in Olmo, it is not subscribed to by a notary; nor does it contain a notary's seal or commission number and/or an expiration date.

In their motion response, the People stated that Officer Tucci "...could not verify such an occupant existed."

C. Thomas Rodriguez

The accusatory instrument consists of a Complaint, Supporting Deposition and a Clean Halls Affidavit. They were filed at arraignment on February 20, 2003, as follows: "People are in possession of a supporting deposition and a Clean[] Hall[s] affidavit which we are filing with the Court, stating ready at this time." (R 2). The Complaint is dated February 20, 2003, and is signed by Police Officer Stanton. It is virtually identical to the complaint in Olmo, with the exception that Rodriguez provided a residence address of 3735 90th Street. The Complaint concluded that Rodriguez stated that "... he was there to visit a friend who lives on the third floor and this was disproved in that a/o walke[d] to third floor and [Rodriguez] could not give a name or valid apartment number." The Supporting Deposition is signed by Police Officer Ruzzi, who was the informant for the Complaint.

The Clean Halls Affidavit is dated December 26, 2002 (almost two months prior to the incident/arrest), is signed by Margaret Serrano as managing agent, and is identical to the affidavits in Olmo and Liner. While the affidavit is purportedly sworn to before a notary public, it contains no notary stamp, nor any indication of the name of the notary public or the expiration date of the notary license.

Rodriguez argues that: "[w]hile defense counsel is not in possession of the [Clean Halls] [*6]affidavit, upon information and belief, the affidavit predates this occurrence....this predated affidavit is insufficient to convert the accusatory instrument into a jurisdictionally

sound information." To date, the defense has not been served with either the Supporting Deposition or the Clean Halls Affidavit.

D. Eric Santiago

The accusatory instrument consists of a Complaint dated January 17, 2003, a Supporting Deposition signed by John Calderone of Sebco, Inc., a Clean Halls Affidavit signed by Yessenia Velez and a tenant rooster revised on January 30th of an unspecified year.

The Complaint is signed by Police Officer Kaufman. It provides, in pertinent part, that at a specified time and location, "...the source of which is the supporting deposition being filed with this instrument [from] PO [John] Angizer...." This Complaint is similar to the Complaint in Olmo with the exception that this defendant provided a residence address on East 165th Street and ...stated he did not live at the above dwelling and did not know anyone inthe building and...stated...he...was there to visit Joey in apt. 4a. No suchperson was present in apt. or listed on the tenant roster and defendant stated...[he was] the[r]e to visit Joey and this was disproved...by Sgt. Rodriguez who went to apt. #4A and found [it] to be vacant and all apts on that floor were vacant.

On January 30, 2003, a Notice of Readiness was served and filed, along with a Supporting Deposition from Mr. Calderone. On February 3, 2003, a second Notice Of Readiness was filed, along with a Clean Halls Affidavit dated September 17, 2002 (four months before the alleged incident), and a tenant roster "...revised on 1/30[.]"

During a calendar call on February 19, 2003, the court noted that there appeared to be some kind of irregularity with respect to the notices of readiness.

Furthermore, the court file does not contain a Supporting Deposition from either Police Officer Angizer or Sergeant Rodriguez. On July 28, 2003, the People advised the court that they were not in possession of Sergeant Rodriguez' Supporting Deposition. Thus, it does not appear that the Complaint against Santiago has been converted into an information.

E. Adam Torres

The accusatory instrument consists of a Complaint, Supporting Deposition and Clean Halls Affidavit. The complaint, dated January 25, 2003, is virtually identical to the Complaints in Olmo and Rodriguez, with the exception that defendant in Torres provided another residence address and "...stated...he was there to see a friend and this was disproved in that defendant could not provide tenant's name or apartment number." The affidavit, apparently dated August 22, 2002 (over six months prior to the alleged incident/arrest), is the same as the affidavits in Olmo and Liner.

F. Nakam Williams

The accusatory instrument consists of a Supporting Deposition dated September 22, 2003, and a Complaint dated September 23, 2003, as well as a Clean Halls Affidavit and a tenant roster both of which are dated June 18, 2003 (over three months prior to the alleged [*7]incident/arrest). The facts are almost identical to those in Torres.

The People argue that the Clean Halls Affidavit

...is a written declaration by a private party giving the world notice of the

contract between the private individual and the [NYPD]. Furthermore, the

terms [of] the contract expressly set forth that for purposes of arrest, the

private individual has assigned the [NYPD] the power to determine and

declare a person to be trespassing if no legitimate purpose is found.

Consequently, the only person needed to sign a complaint...is the police

officer who made the determination.

IV. Analysis

To establish the element that each defendant lacked permission or authority to be in the dwelling, each Complaint refers to the accompanying Clean Halls Affidavit, which, purportedly, states "...that only tenants and their invited guests are permitted inside of the above dwelling." [FN5] As reflected above, however, the clean halls affidavits, do not reflect this and do not even mention guests. As in People v. Ward, 3/5/01 NYLJ 22 (col. 2) (Crim. Ct., Bronx Co.), each of these documents (as drafted) do not "...appear to have any significance or relevance to the crime charged." These clean halls affidavits appear to contain hearsay and seem to be independent documents referring to different cases.

In short, therefore, all the Complaints (as drafted) are legally insufficient. This is not the only defect in the pleadings, however. Each of the clean halls affidavits predate the crime by periods of time ranging from two months to nearly seven months. In response to a staleness argument raised by the defense, the People claim that ...the Clean Halls Program grants [the NYPD] the permission to investigate individuals suspected of trespassing. The affidavit affirming that said location is part of the Clean Halls operation is updated every six months. Therefore, the current affidavit, according [to] the operational procedures, is timely. Furthermore...the Police Officers are provided with tenant roosters that are also repeatedly updated. The Police officers are always in possession of these rosters when conducting sweeps of these buildings. If a defendant is not listed on the tenant roster, the next step [is] to check the apartment or person the defendant claims he is there to visit. Once all of these procedures are conducted, [the NYPD] ha[s] full permission and authority (pursuant to the Clean Halls Operation), as well as the necessary documents, to determine that a person is trespassing. Therefore, the officer's observations are not required to be corroborated as long as the location is still a Clean Halls location.[*8]

The People, therefore, argue that the Complaint has been converted to an Information. See CPL §170.65(1). Not surprisingly, the People cite no legal authority to support this proposition.

In the lone New York case to apparently address this issue, People v. Pastreich, 8/16/93 NYLJ 24 (col. 6) (Crim. Ct., N.Y. Co.), the defendant claimed that a Supporting Deposition sworn to one day before the Complaint was legally insufficient, mandating dismissal of the underlying Administrative Code violation. In rejecting this argument, Judge Goldberg held that:

Insofar as relevant here, CPL § 100.20 defines a supporting deposition as

'a written instrument accompanying or filed in connection with...

a misdemeanor complaint...containing factual allegations of an evidentiary

character.' The supporting deposition filed in this case meets the above

criteria. While quite often the filing of the supporting deposition follows

the accusatory instrument and is based solely on facts mentioned within it,

there is no statutory requirement that the supporting deposition be drawn after

the accusatory instrument has been sworn to. The instant deposition is not

based upon the factual allegations in the complaint, but rather upon an

independent review of Building Department records. Therefore, whether it

was written or sworn to before or after the accusatory instrument instrument

does not affect the validity of the instrument.

Even assuming the continued viability of Pastreich, it does not support the People's position here. First, a one-day delay is hardly the equivalent of one month, much less nearly a seven-month delay. Second, most of the Information proffered by ADAs Bautista

and Lippiello is dehors the record and not mentioned or relied upon in the pleadings. Thus, it cannot be relied upon in resolving these motions Third, as drafted, the clean halls affidavits which are the subject of this motion, are not collateral to the contrary, by their own terms, they are being proffered by the People to establish an element of the crime charged. Fourth, in today's society, People move fairly regularly and often. A multi-month delay in reporting, in this, a criminal context, is simply unacceptable.

In sum, the People have cited no authority which has sanctioned the filing of an outdated clean halls affidavit to establish an element of the crime.

The court acknowledges that a Supporting Deposition is only required to contain "...factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge...contained therein." CPL §100.20. As recognized in People v. Modica, 187 Misc.2d 635, 637 (Sup. Ct., Richmond Co. 2001), CPL §100.20 "...clearly does not require precise factual symmetry between the accusatory instrument and the supporting deposition...Thus, the statute does not require that a supporting deposition contain the 'same facts' as are alleged in the accusatory instrument." Thus, it may be that a differently drafted Complaint, supplemented by a differently drafted Supporting Deposition/Clean Halls Affidavit may be permissible.

The court is also aware that in People v. Casey, 95 N.Y.2d at 360 and People v. Keizer, [*9]100 N.Y.2d 114 (2003), the ability of the Criminal Court to dismiss an accusatory instrument on sufficiency grounds has been reduced significantly. While Casey and its

progeny are certainly binding on this court, they do not prohibit the granting of a motion to dismiss on sufficiency grounds when an appropriate record is made.

Alternatively, the affidavits in Liner and Rodriguez are defectively executed, providing another basis for dismissal. In Olmo, there is no evidence in the record that the apartment building in question (1685 University Avenue) is "...a building which is used as a housing project..." CJI2d [NY] Penal Law § 140.10(e). Thus, there is no basis to grant the People's alternative application to reduce the charge to criminal trespass in the third degree. In addition, it appears that the complaint in Santiago has never been converted into an Information.

At the same time, it appears appropriate to comment on the People's long-standing practice of converting a Complaint into an Information without serving defense counsel with the required documents (usually a Supporting Deposition and a Clean Halls Affidavit). This procedure enables the People to answer ready, but does not provide defense counsel with the opportunity to review the documents and/or consult with the defendant before commenting on the sufficiency of the filed documents. It may be, as set forth in some detail in People v. Parker, 7/31/2000 NYLJ 30 (col. 4)(Crim. Ct., Bronx Co.), that it is the responsibility of the court to provide the defense with a copy of these documents. In practice, though, the People control the filing of these documents and the timing of the filing of these documents. By literally waiting until the last moment to unilaterally file these documents, the People place defense counsel in an untenable position. Not only is counsel unable to consult with his client, but counsel is not presented with any meaningful opportunity to review the documents and make informed arguments

to the presiding judge. See People v. Evangelista, 11/16/2003 NYLJ 18 (col. 1)(Crim. Ct., Bronx Co.)(Modica, J.)("Under both the State and Federal Constitutions, a defendant is entitled to 'fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer the charges and prepare an adequate defense.'") [quoting People v. Keindl, 68 N.Y.2d 410, 416 (1986)].

As set forth in Parker, this practice may enable the defendant to file a motion pursuant to CPL §30.30. Nevertheless, this court urges the People, as a matter of fairness and procedure, to change its practice and serve defense counsel when they seek to convert a Complaint into an Information

V. Conclusion

The motions by the defendants Victor Olmo, Kenneth Liner, Thomas Rodriguez, Eric Santiago, Adam Torres and Nakam Williams to dismiss the above-referenced complaints as facially insufficient are granted.

This constitutes the Amended Decision and Order of the Court.

Date:Bronx, New York [*10]

November 20, 2003SETH L. MARVIN, J.C.C.

Decision Date: November 20, 2003 Footnotes

Footnote 1:A person knowingly enters [remains] unlawfully in a dwelling when that person is aware that he...is entering [remaining] in such dwelling without license or privilege to do so." CJI2d [NY] Penal Law §140.15

Footnote 2:"To have no license or privilege to enter [remain] means to have no right, permission or authority to do so." CJI2d [NY] Penal Law §140.15

Footnote 3:As explained in People v. Roque, 99 N.Y.2d 50, 52 (2002): Often a building owner or manager files a 'trespass affidavit' with police stating that the building has been plagued by illegal drug trade and asks police to patrol the building for trespassers. Police then stop people they encounter in the halls to ask for identification and to inquire if they are residents or otherwise lawfully in the building...

Footnote 4:"A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building....where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof[.]" Penal Law §140.10(e)

Footnote 5:Each complaint and each clean halls affidavit provide as set forth on pp. 3 and 4, infra, respectively.