People v Weatherspoon

[*1] People v Weatherspoon 2009 NY Slip Op 51194(U) [23 Misc 3d 1139(A)] Decided on May 5, 2009 Criminal Court Of The City Of New York, Kings County Douglas, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Darrell Weatherspoon, Defendant



2007NY081731



The defendant was represented by the Legal Aid Society, Stephen Banks, Esq. (Allen S. Popper, of counsel)

The People were represented by Charles J. Hynes, District Attorney, Kings County (Mara Hsiung, of Counsel)

Dena E. Douglas, J.

Defendant, Darrell Weatherspoon, is charged with criminal trespass in the third degree pursuant to Penal Law § 140.10(a), with criminal trespass in the second degree pursuant to Penal Law 140.15, and with trespass pursuant to Penal Law § 140.05. Defendant has moved to dismiss the accusatory instrument for facial insufficiency in that the information fails to present facts that support or tend to support reasonable cause to believe the defendant committed the offenses charged or to establish every element of the offenses charged.

An accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. In order to be considered facially sufficient, it must allege facts of an evidentiary character supporting or tending to support the offenses charged, CPL 100.15(3) and provide reasonable cause to believe that the defendant committed the offense charged, CPL 100.40(1)(b). It must also contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof, CPL 100.40 (1)(c). Mere conclusory allegations will render the instrument defective, People v Dumas, 68 NY2d 729, (1986).

The complaint alleges that defendant was observed by deponent, Police Office T. Anderson, on the first floor of a New York City Housing Authority (NYCHA) building at 552 Flushing Avenue, Kings County, a dwelling, which is posted with signs saying, "Loitering and trespassing in lobby roof hallway and stairs is not permitted. Violators are subject to arrest and prosecution by the Police Department." Deponent further states that defendant was neither a tenant nor a guest in the above-mentioned premises. Deponent describes herself as custodian of the dwelling and states that defendant did not have permission or authority to enter and remain in those premises. [*2]

DISCUSSION

A person is guilty of criminal trespass in the third degree pursuant to PL § 140.10(a) when he knowingly enters or remains unlawfully in a building upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. In People v Moore (5 NY3d 725[2005]) the Court of Appeals held that the plain language of the statute, as amended by the Legislature in 1987 (L 1987, ch 192), clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass under Penal Law § 140.05 to criminal trespass in the third degree under PL 140.10(a). The 1987 amendment narrowed the definition of criminal trespass in the third degree to require the enumerated condition of fencing or enclosure to be present. Moore, supra at 727. Since the factual part of the information, together with the accompanying supporting deposition, lacks any allegation showing that the building or real property was fenced or otherwise so enclosed, this charge is insufficient on its face and must be dismissed. See also People v O'Connor, 2009 Slip Op 50395U; 22 Misc 3d 140A (Appellate Term, 2nd Dept, March 9, 2009). Defendant's motion to dismiss this charge is granted.

A person is guilty of criminal trespass in the second degree pursuant to PL § 140.15 when he knowingly enters or remains unlawfully in a dwelling. In 1992, the State Legislature added subdivision "(e)" to PL § 140.10 to create the crime of criminal trespass in the third degree for knowingly entering or remaining unlawfully in a building that is used as a public housing project, in violation of conspicuously posted rules or regulations governing entry and use thereof. The People argue that trespass in a NYCHA building may be prosecuted under either PL 140.15 as a Class A misdemeanor or under PL 140.10(e) as a Class B misdemeanor. We agree with recent decisions that rely on People v Moore( supra at 727), to explain why the offenses enumerated in PL § 140.10 (a) through (f) may not also be charged under PL § 140.15: "Starting with the violation of trespass (see Penal § 140.05), the crimes become progressively more serious as they approach criminal trespass in the first degree (See PL § 140.17)." Moore found it unreasonable for trespass and third-degree criminal trespass to both be committed by the identical conduct of knowingly entering or remaining unlawfully in an unfenced or unenclosed building. This court agrees with People v Spencerel (2008 NY Misc LEXIS 5218) that "both third-degree and second-degree criminal trespass would be committed by identical conduct if effect is not given to the limiting language of PL § 140.10(e). Such an approach would ignore completely the legislative amendments of 1992 while enabling the prosecution, at its unfettered discretion, to select a higher or lesser degree of charge based on identical conduct." See also People v Finley, (10 NY3d 637, 654 [2008]) (The Court of Appeals denied interpretation of a statute which would nullify a misdemeanor created by the Legislature and make every violation a felony). The Legislature manifestly intended that trespass in public housing be prosecuted pursuant to Penal Law 140.10(e) because it was apparently the Legislature's belief that until adoption of that statute, such conduct would not be criminal, and the Legislature , in its view was not providing an alternative method for prosecuting trespassers in public housing but creating a new and exclusive crime. Spencerel, ibid. Therefore, following Spencerel, this court grants defendant's motion and dismisses the charge of trespass in the second degree.

A person is guilty of trespass, a violation pursuant to Penal Law § 140.05, when he knowingly enters or remains unlawfully in or upon premises. A person enters or remains [*3]unlawfully in or upon premises when he is not licensed or privileged to do so. The information alleges that defendant was observed on the first floor of a NYCHA building which is posted with signs prohibiting loitering and trespassing and stating that violators are subject to arrest and prosecution and that defendant is neither a tenant nor a guest in the building. Without more, we find these statements conclusory. Nowhere in the complaint or the supporting deposition are facts provided regarding where defendant was in the building in relation to where the signs were posted, whether defendant was in or beyond a portion of the building that might be considered a lobby, or how it was determined that defendant was not licensed or privileged to be in the building. True, People v Carter states that simply being in the lobby of a housing project can subject someone to a criminal trespass violation (169 Misc 2nd 230, 234(Crim Ct, Kings County, [1996]), however it is the position of this court that more is needed than the boiler-plate statements presented in this accusatory instrument.

As discussed in People v Outlar, a case subsequent to Carter, an accusatory instrument charging trespass still must meet a minimum standard of pleading €" it must be alleged that defendant had knowledge that he chose to commit an unlawful act. (177 Misc 2d 620, 621[Criminal Court, NY County, 1998]). Citing People v Brunson (8/14/1995 NYLJ 32[col][Criminal Court, Queens County, 1995]) regarding the element of knowledge, Outlar reiterates that "Without conspicuously posted signs, one cannot impute the essential element of knowledge to the defendant." The information must indicate that the signs were posted strategically or conspicuously enough to afford adequate notice to the accused, and an allegation simply that such rules are posted is insufficient to plead a communication to the accused. (Outlar at 625). Although the Brunson and Outlar defendants were accused of second degree and third degree trespass, these elements are equally necessary for sufficiently pleading a violation of simple trespass. The People have shown nothing to support their contention that defendant had knowledge that his entrance into the building was unlawful. Sufficient pleading is particularly important in view of the facts that the defendant was not arrested inside the building where he is alleged to have trespassed but in front of another building, 53 Nostrand Avenue, and that defendant has denied having entered the subject building.

The factual allegations in the complaint do not give reasonable cause to believe that defendant knowingly and unlawfully entered and remained in a premises.

Defendant's motion to dismiss all three charges for facial insufficiency is granted.

This opinion constitutes the decision and order of the court.

Dated:Brooklyn, New York

May 5, 2009________________________

Dena E. Douglas

Judge of the Civil Court