People v Nichson
Annotate this CaseDecided on June 21, 2011
Criminal Court of the City of New York, New York County
The People of the State of New York, Plaintiff,
against
James Nichson, Defendant.
2010NY080432
For the Defendant:
Golda Fleishman, Esq.
The Legal Aid Society
49 Thomas Street
New York, New York 10013
Matthew A. Sciarrino Jr., J.
The defendant is charged with criminal trespass in the second degree (P.L. § 140.15), criminal possession of marijuana in the fifth degree (P.L. § 221.10[1]), unlawful possession of marijuana (P.L. § 221.05[1]), and criminal trespass in the third degree (P.L. § 140.10[e]). He now moves this court for an order dismissing the charges of criminal trespass in the second and third degree for facial insufficiency. The People have not responded to the defendant's motion.
Facial Sufficiency
An accusatory instrument upon which the defendant may be held for trial "must allege facts of an evidentiary character' (CPL § 100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL § 100.40[4][b])." People [*2]v. Dumas, 68 NY2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish every element of the offense charged and the defendant's commission thereof." CPL § 100.40 (1)(c).
In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Contes, 60 NY2d 620, 621 (1983). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry. " People v. Deegan, 69 NY2d 976, 979 (1987). "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 (citations omitted)." People v. Casey, 95 NY2d 354, 360 (2000).
The accusatory instrument states: Deponent states that while on patrol inside the above location, an apartment building where people reside, deponent observed defendant inside the hallway of the 7th floor of the dwelling and that said location is beyond a posted sign which read, "No Trespassing", "Tenants and their Guests Only" and "in part: Anyone who remains unlawfully upon these premises will be prosecuted". Deponent further states that defendant is not a tenant in that thedefendant provided an address different from the above location and defendant is not an invited guest in that the defendant was unable to provide the identity of a resident of whom defendant was an invited guest.Deponent determined that the defendant did not have permission or authority to be inside the dwelling based on information and belief the source of which is as follows: Deponent observed defendant inside a Housing Authority Building. Deponent is a member of the New York Police Department and as such is an agent of this dwelling and defendant did not have permission or authority to enter or remain in the area in which he was found. Deponent further states that when deponent first approacheddefendant, deponent observed defendant motion as if throwing multiple items onto the floor.[*3]Deponent further states that deponent observed Police OfficerNicholas Pacheco, shield No.27542, and Police Officer Jennifer Lasky, shield #25804, recover five (5) five [sic] zip-lock bags of marijuana from the same area of the floor. Deponent further states that deponent observed Police OfficerLasky recover (1) one zip-lock bag of marijuana from defendant's front right cargo pants pocket, and that deponent observed Police Officer Pacheco recover (17) seventeen zip-lock bags of marijuana from defendant's groin area.Deponent believes the above substance is what it is alleged to be based upon: deponent's professional training as a police officer in the identification of drugs, deponent's prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.
Criminal Trespass in the Third Degree P.L. § 140.10[e].
The Court finds that the charge of criminal trespass in the third degree is facially sufficient."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. . . (e) 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]).
A defendant " enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so. . . ." P.L. 140.00(5).
In this case, the accusatory instrument alleges that the defendant was in the hallway of a New York City Housing Authority building beyond a posted sign stating "No trespassing" and "Tenants and their Guests Only." This would indicate to the defendant the unlawfulness of his presence on the premises if he was neither a [*4]tenant nor a tenant's guest. The defendant was not a tenant of the building as he provided an address different from the building location, and he was not an invited guest in that he was unable to provide the identity of a resident that had invited him to the premises. As such, the accusatory instrument sufficiently alleges, at the pleading stage, that the defendant entered and remained unlawfully in the building. People v. Quinones, 2002 NY Slip Op. 50091(U) (App. Term 1st Dept. 2002), appeal denied, 98 NY2d 680 (2002); see also, People v. Delossantos, 2011 NY Slip Op. 21183 (Crim. Ct. N.Y County 2011); People Easton, 16 Misc 3d 1105(A) (Crim. Ct. NY County 2007).
Accordingly, the defendant's motion to dismiss the charge of third degree criminal trespass for facial insufficiency is denied.
Criminal Trespass in the Second Degree P.L. § 140.15.
The Court finds that the charge of criminal trespass in the second degree is facially sufficient.
"A person is guilty of criminal trespass in the second degree when: he or she knowingly enters or remains unlawfully in a dwelling." Penal Law § 140.15(1).
"Dwelling means a building which is usually occupied by a person lodging therein at night." P.L. 140.00(5). Clearly "an apartment building within a public housing project is a dwelling'. . . ." People v. Delossantos, 2011 NY Slip Op. 21183 (Crim. Ct. NY County 2011).
For the reasons previously discussed with respect to the P.L. §140.10(e) charge, the accusatory instrument sufficiently alleges that the defendant entered and remained unlawfully.
The defense argues that the charge of second degree criminal trespass is insufficient because it is inapplicable to public housing buildings. However, second degree criminal trespass does, in fact, apply to public housing buildings. This can be seen in People v. Quinones, where an accusatory instrument involving a public housing building was deemed to "sufficiently set forth the factual basis for the charge of criminal trespass in the second degree (Penal Law § 140.15) by alleging, inter alia, that defendant was observed inside the lobby of a public housing apartment building. " (Quinones, 2002 NY Slip Op 50091[U]).
In People v. Delossantos, the Court held that "an apartment building within a public housing project is a dwelling' and a [*5]person who enters such a building without permission is subject to prosecution for second degree trespass " (People v. Delossantos, 2011 NY Slip Op. 21183).
Accordingly, the defendant's motion to dismiss criminal trespass in the second and third degrees is denied.
The defense also argues that the defendant cannot be simultaneously charged with trespassing in a dwelling (P.L. § 140.15) and unlawful possession of marijuana (P.L. § 221.05), which requires that the marijuana be possessed in a "public place". Penal Law § 240.00(1) defines "public place" as,
a place to which the public or a substantial group of persons has access, and includes, but is not limited to, . . . hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.
Hence, a public housing apartment building can be both a dwelling and a public place according to the aforementioned definition if a substantial group of persons have access to it. This is true of the present case. It is fair to say that, considering the access allowed to tenants, visitors, and presumably staff, a substantial group of people have access to the public housing building where the defendant was located and it falls within the statutory definition of the term "public place". Therefore, the defendant can be charged simultaneously with trespassing in a dwelling and public possession of marijuana.
Accordingly, the defendant's motion to dismiss the charge of second degree criminal trespass for facial insufficiency is also denied.
Additional Motions
Any additional, supplemental, or amended motions contemplated by the defendant shall be permitted only to the extent that such new or amended motions fall within the scope of CPL §255.20(2) and (3).
This opinion shall constitute the decision and order of the Court. [*6]
Dated: June 21, 2011___________________________
New York, New YorkMatthew A. Sciarrino, Jr.
Judge of the Criminal
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