People v Weatherspoon

[*1] People v Weatherspoon 2009 NY Slip Op 51943(U) [24 Misc 3d 1250(A)] Decided on August 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Darrell Weatherspoon, Defendant



2008KN076633



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 (Leonard Joblove and Mara Hsiung, of Counsel)

Dena E. Douglas, J.

By a superseding information filed on June 5, 2009, defendant, Darrell Weatherspoon, is charged with criminal trespass in the third degree pursuant to Penal Law § 140.10(e) and with trespass pursuant to Penal Law § 140.05. Defendant has moved to dismiss the accusatory instrument on the grounds that the superseding information is facially defective and that defendant's right to a speedy trial has been violated.

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) However, at the pleading stage, the People's prima facie case requirement is not the same as the burden of proof beyond reasonable doubt required at trial. People v Jennings, 69 NY2d 103, 115 (1986), People v Henderson, 92 NY2d 677, 680 (1999). 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. (People v Casey, 95 NY2d 354, 360, 2000).

A person is guilty of criminal trespass in the third degree pursuant to PL § 140.10(e) 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. The superseding complaint alleges that defendant [*2]was observed by deponent Police Office T. Anderson inside the first floor of a New York City Housing Authority (NYCHA) apartment building at 552 Flushing Avenue, Kings County, beyond the entrance door of the building and facing a conspicuously posted sign 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 affirms that defendant stated that his home address was 53 Nostrand Avenue and that defendant was unable to provide a legitimate reason for being inside the building. Deponent is a custodian of the NYCHA building and states that defendant was neither a tenant nor a guest in the building and that defendant did not have permission or authority to enter or remain in those premises.

DISCUSSION

a.) Facial sufficiency. Here, the factual allegations of the accusatory instrument establish, if true, every element of the offense charged. It is alleged that the building that defendant entered into and remained within was a public housing project. Rules and regulations governing entry and use of the building were conspicuously posted. Defendant was facing said posted signs and thus we may impute his knowledge that his actions were unlawful. (People v Outlar, 177 Misc 2d 620, 621[Criminal Court, NY County, 1998]). The accusatory instrument further alleges that defendant did not have permission or authority to enter or remain in the building. The allegations provide defendant with notice sufficient to prepare a defense to the charge of criminal trespass in the third degree and are adequately detailed to prevent defendant from being tried twice for the same offense. People v Casey , 95 NY2d 354, 360 (2000); People v Flores, 21 Misc 3d 141A; NY Slip Op 52371U, App Term, 2nd Dept, 2008.

Defendant's motion to dismiss the charge of criminal trespass in the third degree is denied, as is his motion to dismiss the lesser included offense of trespass pursuant to PL § 140.05. In Schmuck v. United States (489 U.S. 705, 716 [1989]), the United States Supreme Court adopted the ''elements approach" and identified the test for defining lesser included offenses as ''... one offense is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense." Since the elements of trespass pursuant to PL § 140.05 are wholly included in the elements of criminal trespass in the third degree, an accusatory instrument that is facially sufficient for criminal trespass in the third degree is necessarily facially sufficient for trespass. See also People v Glover, 57 NY2d 61,64 (1982); People v Miller, 6 NY3d 295 (2006); United States v Snype, 441 F 3d 119,142 (2006);.

b.) Speedy trial. Defendant also moves for dismissal of the accusatory instrument on the ground that his right to a speedy trial has been violated. As there can be only one criminal action for each set of criminal charges brought against a particular defendant, not withstanding that the original accusatory instrument may be replaced or superseded during the course of action (People v Lomax, 50 NY2d 351, 356 [1980]), the superseding information relates back to defendant's original charges and arraignment date of October 14, 2008. . Since defendant was originally charged with criminal trespass in the second degree pursuant to PL 140.15, a class A misdemeanor, the People have 90 days to prepare for trial, pursuant to CPL 30.30 (1)(b). People v Cooper, 98 NY2d 541 (2002).

When a motion is made pursuant to CPL § 30.30, a defendant meets his burden of going forward by demonstrating that a delay greater than the allowable statutory time limit has [*3]occurred since the commencement of the action. Once shown, the burden then shifts to the People to show that certain periods of time should not be charged against them (see People v Berkowitz, 50 NY2d 333 [1980]). Defendant contends that since the three charges in the original complaint were found to be defective, the entire time from defendant's initial arraignment until the time of the filing of the superseding information should be chargeable to the People, a period of 234 days. We do not agree. The filing of a superseding information does not retroactively eliminate periods of time in which the People are not responsible for delay. People v Sinistaj, 67 NY2d 236 (1986); People v Heinitz, 19 Misc 3d 1107A (2008).

Defendant was arraigned on October 14, 2008, charged with criminal trespass in the third degree pursuant to PL § 140.10(a), criminal trespass in the second degree pursuant to Penal Law 140.15, and trespass pursuant to Penal Law § 140.05. A supporting deposition was filed, thus converting the complaint to an information, the People stated their readiness, and the matter was adjourned to December 8, 2009, for discovery by stipulation (DBS). This time is excludable pursuant to CPL § 30.30 (4)(a). People v Smalls, 163 Misc 2d 369 (1994); People v Dorilas, 19 Misc 3d 75, 76-77, App Term, 2nd Dept, (2008). (0 days)

On December 8th, DBS was served, the People confirmed their readiness and the matter was adjourned to February 5, 2009, for hearings and trial. This time is excludable as a reasonable time to prepare for trial. The People are in a post-readiness position and no delay is attributable to them. (0 days)

Pursuant to the Record of Court Action, the People were ready on February 5, 2009, and the matter was adjourned to March 16, 2009 for hearings and trial. Defendant filed a motion to dismiss for facial insufficiency on February 13, 2009. The People were directed to respond to defendant's motion by March 30th and the matter was adjourned to May 6, 2009 for decision. This time is excludable as motion practice. (0 days)

On May, 6, 2009, defendant's motion to dismiss the charges for facial insufficiency was granted. However, the court stayed the dismissal for 30 days, granted the People leave to file a superseding information, adjourned the matter to June 5, 2009. Dismissal was not an appropriate remedy where the People could amend or file a superseding information. CPL 170.35(1); People v Gore, 143 Misc 2d 106 (Crim Ct, Kings Co, 1989; People v Heinitz, supra. This 30 day period is chargeable to the People. (30 days)

On June 5th the People filed a superseding information and defendant filed a motion to dismiss for facial insufficiency and for violation of defendants's rights to a speedy trial. The matter was adjourned to July 8, 2009. This time excludable as motion practice. (0 days)

On July 8th, the People requested and were granted an additional week to respond to defendant's motion, which they filed on July 15. 2009. The matter was adjourned to September 8, 2009 for decision. This time is excludable as motion practice. (0 days)

The People are charged with a total of 30 days of delay.

Defendant's motion to dismiss for violation of the speedy trial statute is denied.

This opinion constitutes the decision and order of the court. [*4]

Dated:Brooklyn, New York

August 14, 2009

Dena E. Douglas

Judge of the Civil Court